McCabe V Barr - DOJ Motion To Dismiss - 11-1-19 PDF

Case 1:19-cv-02399-RDM Document 23 Filed 11/01/19 Page 1 of 48
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
)
ANDREW G. MCCABE., )
)
Plaintiff, )
) Case No. 1:19-CV-2399-RDM
v. )
)
WILLIAM P. BARR, in his official capacity )
as Attorney General of the United States, et )
al., )
)
Defendants. )
)
)
MOTION TO DISMISS AND FOR SUMMARY JUDGMENT
Defendants hereby move to dismiss, in part, Plaintiff’s complaint, under Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6), and seek summary judgment as to the remainder of the
complaint, under Federal Rule of Civil Procedure 56, as described, and for the reasons contained,
in the accompanying memorandum.
Dated: November 1, 2019 Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
CHRISTOPHER R. HALL
Assistant Branch Director
/s/ Justin M. Sandberg

JUSTIN M. SANDBERG
Senior Trial Counsel
KYLA M. SNOW
Trial Attorney
U.S. Dep’t of Justice, Civil Div., Federal Programs
Branch
1100 L Street, NW
Washington, D.C. 20001
Phone: (202) 514-5838

Fax: (202) 616-8460
Justin.Sandberg@usdoj.gov
Counsel for Defendants
1

)
)
Plaintiff, )
v. )
)
al., )
)
Defendants. )
)
)
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS AND FOR SUMMARY

JUDGMENT
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 4
ARGUMENT ................................................................................................................................ 10
I. The CSRA Precludes McCabe’s Statutory and Regulatory Claims ................................. 10
II. Plaintiff’s Constitutional Due Process Claims Lack Merit ............................................... 14
A. Plaintiff Has No Property Interest in His Former Job or Its Benefits ...................... 15
B. Plaintiff Has Waived His Bias Allegations .............................................................. 17
C. Plaintiff Has Not Stated a Plausible Claim of Bias.................................................. 19
D. Plaintiff Had Ample Time to Respond to the Notice of Proposed Removal ........... 23
III. Plaintiff’s Removal Did Not Violate the First Amendment ............................................. 26
CONCLUSION ............................................................................................................................. 31
i
TABLE OF AUTHORTIES
Cases
Abhe & Svoboda, Inc. v. Chao,

508 F.3d 1052 (D.C. Cir. 2007) ................................................................................................ 19
Am. Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40 (1999) .................................................................................................................... 15
Am. Postal Workers Union, AFL-CIO v. U.S. Postal Service,

707 F.2d 548 (D.C. Cir. 1983) .................................................................................................. 16
Aref v. Lynch,
833 F.3d 242 (D.C. Cir. 2016) .................................................................................................. 17
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ...................................................................................................... 19, 20, 23
Ass’n of Nat. Advertisers, Inc. v. FTC,

627 F.2d 1151 (D.C. Cir. 1979) ................................................................................................ 21
Bloch v. Powell,
227 F. Supp. 2d 25 (D.D.C. 2002), aff’d, 348 F.3d 1060 (D.C. Cir. 2003) .............................. 17
Cayuga Nation v. Bernhardt,

374 F. Supp. 3d 1 (D.D.C. 2019) .............................................................................................. 18
Clark v. Library of Congress,

750 F.2d 89 (D.C. Cir. 1984) .................................................................................................... 27
Cleveland Bd. of Educ. v. Loudermill,

470 U.S. 532 (1985) .................................................................................................................. 23
Crosby-Bey v. Dist. of Columbia,

786 F.2d 1182 (D.C. Cir. 1986) ................................................................................................ 15
Dave v. D.C. Metro. Police Dep’t,

926 F. Supp. 2d 247 (D.D.C. 2013) .......................................................................................... 16
De Llano v. Berglund,
282 F.3d 1031 (8th Cir. 2002) ................................................................................................... 28
Doe v. U.S. Dep’t of Justice,

753 F.2d 1092 (D.C.Cir.1985) .................................................................................................. 16
ii
Douglas v. Veterans Admin.,

5 M.S.P.R. 280 (1981)................................................................................................................. 2
Duffy v. Selsky,
No. 95-cv-0474, 1996 WL 407225 (S.D.N.Y. July 18, 1996) .................................................. 15
Elrod v. Burns,
427 U.S. 347 (1976) .................................................................................................................. 26
Filebark v. U.S. Dep’t of Transp.,

555 F.3d 1009 (D.C. Cir. 2009) .......................................................................................... 13, 14
Fornaro v. James,
416 F.3d 63 (D.C. Cir. 2005) .............................................................................................. 12, 14
Free Enter. Fund v. Pub. Co. Accounting Oversight Bd.,

561 U.S. 477, (2010) ................................................................................................................. 22
Gardner v. United States,

No. CIV A. 96-1467, 1999 WL 164412 (D.D.C. Jan. 29, 1999), aff’d, 213 F.3d 735 (D.C.
Cir. 2000) .................................................................................................................................. 14
Graham v. Ashcroft,
358 F.3d 931 (D.C. Cir. 2004) ...................................................................................... 10, 13, 14
Grosdidier v. Chairman, Broad. Bd. of Governors,

560 F.3d 495 (D.C. Cir. 2009) ............................................................................................ 12, 14
Holmes v. Poskanzer,
342 F. App’x 651 (2d Cir. 2009) ............................................................................................... 22
Johnson v. George,
No. 05-cv-157-MPT, 2007 WL 1697276 (D. Del. June 12, 2007), aff’d, 299 F. App’x 139
(3d Cir. 2008) ............................................................................................................................ 24
Lamb v. Holder,
82 F. Supp. 3d 416 (D.D.C. 2015) ...................................................................................... 13, 16
Louisiana Ass’n of Indep. Producers & Royalty Owners v. F.E.R.C.,

958 F.2d 1101 (D.C. Cir. 1992) ................................................................................................ 24
Mack v. United States,

814 F.2d 120 (2d Cir.1987) ....................................................................................................... 16
Marcus v. Dir., Office of Workers’ Comp. Programs, U. S. Dep’t of Labor,

548 F.2d 1044 (D.C. Cir. 1976) ................................................................................................ 18
iii
McBryde v. Comm. to Review Circuit Council Conduct & Disability Orders of the Judicial
Conference of the U.S.,
83 F. Supp. 2d 135 (D.D.C. 1999), aff’d in part, vacated in part, 264 F.3d 52 (D.C.
Cir. 2001) ....................................................................................................................... 24, 25, 26
Morrissey v. Brewer,
408 U.S. 471 (1972) ............................................................................................................ 23, 25
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274 (1977) .................................................................................................................. 27
Painter v. FBI,
694 F.2d 255 (11th Cir. 1982) ................................................................................................... 16
Pharaon v. Bd. of Governors of Fed. Reserve Sys.,

135 F.3d 148 (D.C. Cir. 1998) ............................................................................................ 18, 20
Slovinec v. Georgetown Univ.,

268 F. Supp. 3d 55 (D.D.C. 2017), aff’d, No. 17-7122, 2018 WL 1052650 (D.C. Cir. Jan. 26,
2018).......................................................................................................................................... 19
Spagnola v. Mathis,
859 F.2d 223 (D.C. Cir. 1988) .................................................................................................. 13
Strumsky v. Washington Post Co.,

842 F. Supp. 2d 215 (D.D.C. 2012) .......................................................................................... 19
Thompson v. Dist. of Columbia,

530 F.3d 914 (D.C. Cir. 2008) .................................................................................................. 15
Thompson v. Shock,
852 F.3d 786 (8th Cir. 2017) ..................................................................................................... 26
Throckmorton v. Nat’l Transp. Safety Bd.,

963 F.2d 441 (D.C. Cir. 1992) .................................................................................................. 20
Twist v. Meese,
854 F.2d 1421 (D.C. Cir. 1988) ................................................................................................ 14
United States v. Fausto,

484 U.S. 439 (1988) ........................................................................................................... passim
Vill. of Bensenville v. Fed. Aviation Admin.,

457 F.3d 52 (D.C. Cir. 2006) .............................................................................................. 18, 19
iv
Vitarelli v. Seaton,
359 U.S. 535 (1959) .................................................................................................................. 13
Wilburn v. Robinson,
480 F.3d 1140 (D.C. Cir. 2007) .................................................................................... 27, 29, 30
Williams v. Johnson,
701 F. Supp. 2d 1 (D.D.C. 2010) .............................................................................................. 27
Withrow v. Larkin,
421 U.S. 35 (1975) .................................................................................................................... 21
Statutes
5 U.S.C. APP. 3 § 2 ........................................................................................................................ 5
5 U.S.C. § 2301 ............................................................................................................................. 11
5 U.S.C. § 2302 ............................................................................................................................. 13
5 U.S.C. § 4301 ............................................................................................................................. 11
5 U.S.C. § 7501 ............................................................................................................................. 11
5 U.S.C. § 7511 ................................................................................................................. 11, 12, 16
5 U.S.C. § 7513 ............................................................................................................................. 11
5 U.S.C. § 7703 ............................................................................................................................. 11
5 U.S.C. § 8412(d)(2) ................................................................................................................... 16
5 U.S.C. § 8905(b) ........................................................................................................................ 17
Constitutional Law
U.S. CONST. art. II, § 2, cl. 2……………………………………………………………………..22
Regulation
8 C.F.R. § 0.29e(d).......................................................................................................................... 1
Other Authorities
Andrew G. McCabe, The Threat: How the FBI Protects America in the Age of Terror and Trump
(2019),
https://www.amazon.com/Threat-Protects-America-Terror-Trump-ebook/dp/B07HFMYQPG
.................................................................................................................................................... 17
v
Statement, Department of Justice, Office of Public Affairs, Attorney General Jeff Sessions
Announces Bradley Weinsheimer to Replace Departing Associate Deputy Attorney General Scott
Schools (July 3, 2018),
https://www.justice.gov/opa/pr/attorney-general-jeff-sessions-announces-bradley-weinsheimer-
replace-departing-associate .......................................................................................................... 7
FBI, About FBI, Leadership & Structure, Director Christopher Wray,

https://www.fbi.gov/about/leadership-and-structure ............................................................... 6–7
FBI, Nat’l Press Release, “FBI Director Names Candice M. Will as Assistant Director for Office
of Professional Responsibility” (Aug. 11, 2004)
https://archives.fbi.gov/archives/news/pressrel/press-releases/fbi-director-names-candice-m.-
will-as-assistant-director-for-office-of-professional-responsibility ............................................. 5
U.S. Department of Justice, Office of Inspector General, “A Report of Investigation of Certain

Allegations Relating to Former FBI Deputy Director Andrew McCabe” (Feb. 2018),
https://oig.justice.gov/reports/2018/o20180413.pdf ............................................................ 1–2, 5
vi
INTRODUCTION
The Federal Bureau of Investigation’s motto is “Fidelity, Bravery, Integrity.” The men
and women of the FBI take those words—and the ideals behind them—very seriously. As
explained by former Assistant FBI Director Candice Will, then-head of the FBI’s Office of
Professional Responsibility, “our integrity is our brand. Without it, we are nothing.” Letter from
Will to Andrew McCabe (“FBI Rec.”) at 15 (Mar. 7, 2018) (attached as Ex. 1). Because of its
institutional devotion to these principles, if the FBI finds that one of its Special Agents lacked
candor under oath, the standard penalty is removal. Id. at 14.
Andrew G. McCabe was one of those Special Agents. Indeed, prior to his March 2018
removal, Mr. McCabe was not just any Special Agent: He was the Deputy Director of the FBI,
the second-highest-ranking official in the Bureau. And he did not get that job by accident. He
earned it, through a long record of distinguished service to the Bureau and to the United States.
But in the FBI, a lofty position does not lessen the need to abide by the ideals memorialized in its
motto. To the contrary, the Deputy Director must lead first by example. Again, to quote former
Assistant Director Will, “the Deputy Director . . . [is] the second-highest position in the FBI,” and
the person holding that job is “expected to comport [him]self with the utmost integrity.” Id. at 15.
Mr. McCabe’s actions here fell short of that bar. After a lengthy investigation, the
Department’s Inspector General found, as detailed in a 34½-page report, that Plaintiff had
repeatedly lacked candor under oath (and not under oath, too) in interviews with its investigators
and with agents from the FBI’s Inspection Division. (The Inspector General also found that
Plaintiff had improperly authorized the confirmation of an ongoing investigation to the press.)
Following standard practice—and the applicable regulation, 8 C.F.R. § 0.29e(d)—the Inspector
General then transmitted his report to the FBI for “such action as it deem[ed] appropriate.” U.S.
Department of Justice, Office of Inspector General, “A Report of Investigation of Certain

Allegations Relating to Former FBI Deputy Director Andrew McCabe,” (“OIG Rpt.”) (Feb. 2018),
https://oig.justice.gov/reports/2018/o20180413.pdf. Assistant Director Will, a career official,
agreed almost entirely with the Inspector General’s findings, departing only on the question of
whether one of Mr. McCabe’s interviews was under oath. FBI Rec. at 1, 12–15.
The next question—one outside the scope of the Inspector General’s mandate and thus left
unaddressed by his report—was what the consequence of these findings should be for Plaintiff.
The obvious answer lay in the words of the motto and the ethos of the Bureau: Removal from the
FBI for conduct “incompatible with the FBI’s Core Values.” FBI Rec. at 15. And based on her
careful review and consideration of the Inspector General’s report, FBI Offense Codes, and the
Douglas factors,1 removal is what Assistant Director Will recommended.
Because Plaintiff was the Bureau’s second-highest-ranking official, Assistant Director Will
did not have the last word in the matter. The Attorney General is the final decision maker for top-
ranking Bureau officials like Plaintiff. But the Attorney General would receive another
recommendation first. This one would come from Associate Deputy Attorney General (ADAG)
Scott Schools, who was the highest-ranking career official in the Department of Justice.
Mr. McCabe was given seven days to provide oral and written responses to the notice of
proposed removal to ADAG Schools. That response period was a departure from the 30-day
response period more frequently provided for a proposed removal. But FBI policy governing the
removal of Senior Executive Service (SES) employees provides that “if there is reasonable cause
to believe the employee has committed a crime for which a sentence of imprisonment can be
imposed, the advance notice may be curtailed to as little as seven days.” FBI SES Policy at 16
1
The Douglas factors, derived from the Merit Systems Protection Board’s decision in Douglas v.
Veterans Admin., 5 MSPB 313, 5 M.S.P.R. 280, 305–06 (1981), are used to determine the
appropriate penalty for employee misconduct.
2
(attached as Ex. 2). Given the Inspector General’s findings that Mr. McCabe lacked candor under
oath, findings which Assistant Director Will seconded after her independent assessment, there was
reasonable cause to believe that Mr. McCabe had committed a crime for which a sentence could
be imposed—and, therefore, a sound basis for affording Mr. McCabe seven days to respond.
No matter: Mr. McCabe’s responses were extensive and sophisticated. Mr. McCabe
testified at an oral hearing before ADAG Schools and, through his legal team, presented four hours
of factual and legal arguments against his proposed removal. The next day, Mr. McCabe’s lawyers
submitted an 11-page, single-spaced response to the notice of proposed removal. Ultimately, after
considering the record, including Mr. McCabe’s extensive responses, ADAG Schools found what
the Inspector General and Assistant Director Will had earlier found: That Plaintiff had lacked
candor, both under oath and not, and had improperly revealed the existence of an ongoing
investigation to the press. ADAG Schools also recommended that Plaintiff be removed from the
FBI. The Attorney General adopted ADAG Schools’ recommendation, removing Plaintiff from
the FBI and the Civil Service.
Mr. McCabe has now filed this suit challenging his dismissal. He raises more than a dozen
claims, but none of them finds its mark. In many of his claims, Plaintiff asserts that Defendants—
the Attorney General and FBI Director in their official capacities, the Department of Justice, and
the FBI—violated statutes and regulations in the course of his removal. But the Civil Service
Reform Act (CSRA) precludes Plaintiff from bringing such claims. The CSRA creates a
comprehensive and, more importantly for these purposes, exclusive remedial scheme. This
comprehensive remedial scheme leaves no room for the hodge-podge of statutory and regulatory
claims brought by Plaintiff.
3
Plaintiff also raises constitutional claims for equitable relief under the Fifth Amendment’s
Due Process Clause and the First Amendment. The CSRA does not preclude these claims, but
they fail nonetheless. He makes two due process claims: 1) the Attorney General was a biased
decision maker; and 2) Plaintiff did not have adequate time to prepare a response to the notice of
proposed removal. Plaintiff waived his claim about the Attorney General’s alleged bias by not
raising it at the administrative level. And regardless, the claim lacks merit, as it rests on an
improper effort to impute alleged bias from the President to others, including the Attorney General.
His other due process claim fares no better: Plaintiff knew the bases of his removal for weeks, and
he and his legal team had ample time to respond to the notice of proposed removal, which ran no
more than 15 pages. Finally, there is Plaintiff’s First Amendment claim, which is essentially that
he was fired for being perceived as a Democrat. Butas stated above and explained below, the
Attorney General decided to remove Plaintiff due to his lack of candor, irrespective of Plaintiff’s
perceived political affiliation.
Accordingly, the Court should dismiss certain of Plaintiff’s claims under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6), and enter summary judgment in favor of Defendants as to
the rest.
BACKGROUND
In 2016, someone at the FBI confirmed the existence of an ongoing criminal investigation
to a reporter, in contravention of standard FBI practice. OIG Rpt. at 1. The question was who.
The FBI tried to find out, including by interviewing the Bureau’s then-Deputy Director—now the
Plaintiff—Mr. McCabe. See id. at 1. Eventually, agents in the FBI’s Inspection Division came to
suspect that Mr. McCabe had authorized the revelation to the reporter and had not been
forthcoming about having done so. Id. Because of his high position in the organization, though,
moving the investigation out of the FBI made sense. Thus, the Department of Justice’s Office of
4
Inspector General (OIG, IG, or Inspector General), which was created by statute as an
“independent and objective unit[]” for conducting “investigations,” 5 U.S.C. APP. 3 § 2, took over.
It conducted an investigation, which included conducting multiple interviews of Plaintiff. Id. at 2.
In February 2018, the Inspector General issued a report entitled, “A Report of Investigation of
Certain Allegations Relating to Former FBI Deputy Director Andrew McCabe,” Feb. 2018,
https://oig.justice.gov/reports/2018/o20180413.pdf.
The Inspector General concluded that Plaintiff had in fact authorized the relevant
disclosure and had lacked candor relating to that conduct on four occasions, in violation of FBI
rules. OIG Rpt. at 2. To start, the IG determined that Plaintiff lacked candor when speaking with
then-FBI Director James Comey about who had authorized the disclosure to the reporter. Id.
Moreover, the IG concluded that Plaintiff had lacked candor on three occasions while under oath—
once while being questioned by agents from the FBI’s Inspection Division and twice while being
questioned by the OIG. Id. The IG also concluded that Plaintiff’s decision to confirm the on-
going investigation violated FBI rules. Id. Before finalizing its report, the OIG shared a draft with
Plaintiff and his counsel, Mar. 15, 2018 Tr. of Hearing in the Matter of Andrew McCabe (“Oral
Resp. Tr.”), at 165:6–8 (attached as Ex. 3), and Plaintiff submitted a response. The OIG considered
the arguments offered by Plaintiff in his response. See, e.g., OIG Rpt. at 23 n.8, 25 n.10, & 26
n.11. Ultimately, OIG “issu[ed] [the] report to the FBI for such action as it deem[ed] appropriate,”
id. at 2.
The ball was then in the FBI’s court. The career head of the FBI Office of Professional
Responsibility (OPR) at the time, Assistant Director Candice Will,2 took the lead under standard
2
See https://archives.fbi.gov/archives/news/pressrel/press-releases/fbi-director-names-candice-
m.-will-as-assistant-director-for-office-of-professional-responsibility (Aug. 11, 2014).
5
Bureau practice. After her independent review of the OIG’s report and the underlying evidence,
she determined that it was not clear whether Plaintiff was under oath when he spoke with the
Inspection Division Agents, but otherwise agreed with the IG’s findings that Plaintiff had lacked
candor and had improperly disclosed the existence of an FBI Investigation. FBI Rec. at 1. After
concluding that Plaintiff had engaged in misconduct, she turned to the consideration of an
appropriate penalty, taking into account factors such as consistency with FBI precedent, the FBI’s
guidelines for punishment, and aggravating and mitigating circumstances. Id. at 14–15. In light
of these considerations, including that dismissal is the standard penalty for lacking candor under
oath and that Plaintiff was the Deputy Director at the time, Assistant Director Will recommended
that Plaintiff be “dismissed from the rolls of the FBI.” Id. at 17. She reasoned, in part, as follows:
“I find that dismissal is appropriate because all FBI employees know that lacking candor under
oath results in dismissal and that our integrity is our brand. Without it, we are nothing. As the
Deputy Director, you held the second-highest position in the FBI and are expected to comport
yourself with the utmost integrity. Despite this, you repeatedly lacked candor with the Director of
the FBI, the OIG, and the FBI’s Inspection Division.” Id. at 15.
While the head of OPR can issue final decisions with regard to lower-ranking FBI
employees, as to the Deputy Director, she could issue only a recommendation. Under DOJ Order
1202, which was signed by former Attorney General Eric Holder, the Deputy Director of the FBI
can be removed only by the Attorney General. DOJ Order 1202, at 14 (Nov. 26, 2013) (attached
to Ex. 4, Letter from Schools to McCabe) (specifying that individuals in “[k]ey SES [p]ositions”
can be removed only by the Attorney General, and defining key positions to include “[a]ll career
SES officials who are deputy Component Heads in Components with a single deputy position”);
see FIB, About FBI, Leadership & Structure, Director Christopher Wray,
6
https://www.fbi.gov/about/leadership-and-structure (listing a single Deputy Director position for
FBI).
Accordingly, Assistant Director Will forwarded her 15-page recommendation (along with
the largely redundant 17-page report of investigation) to the Office of the Deputy Attorney
General. ADAG Scott Schools, then the highest-ranking career official in the Department of
Justice (he has since left the Department), served as the point person. See Statement, Department
of Justice, Office of Public Affairs, Attorney General Jeff Sessions Announces Bradley
Weinsheimer to Replace Departing Associate Deputy Attorney General Scott Schools (July 3,
2018), https://www.justice.gov/opa/pr/attorney-general-jeff-sessions-announces-bradley-
weinsheimer-replace-departing-associate. ADAG Schools sent Plaintiff a letter informing him of
the procedures that the Department would follow in reviewing this matter and of his rights to
“review the material relied upon to support the proposal,” “to reply to this notice orally, in writing,
or both,” “to submit any affidavits or other documentary evidence [he] wish[ed] in support of [his]
reply,” and to have his “attorneys assist [him] in preparing and presenting [the] reply.” Letter from
Schools to McCabe (“Schools Letter) at 1 (Mar. 8, 2018) (attached as Ex. 4).3 Attached to the
letter was DOJ Order 1202, which, as explained above, specified that the Deputy Director of the
FBI can be removed only by the Attorney General. DOJ Order 1202, at 14. The letter also stated
that any decision to remove Mr. McCabe would be effective no earlier than March 16, 2018.
Schools Letter at 1.
Consistent with FBI policy governing the removal of SES employees, the Department of
Justice furnished Mr. McCabe with a week to respond to the notice of proposed removal. Under
3
The letter from ADAG Schools stated that Plaintiff’s written response was due March 15, 2018,
but that deadline was extended until noon on March 16, 2018. Compl. ¶ 122.
7
FBI policy, if a proposed removal is based on misconduct, then the employee is presumptively
afforded 30 days to respond to the proposal. FBI SES Policy at 16. But there is an exception to
this rule. “[I]f there is reasonable cause to believe the employee has committed a crime for which
a sentence of imprisonment can be imposed, the advance notice may be curtailed to as little as
seven days.” Id. The Inspector General’s finding that Mr. McCabe had lacked candor under oath
provided “reasonable cause to believe the employee has committed a crime for which a sentence
of imprisonment can be imposed.”
Plaintiff availed himself of the opportunity to provide both an oral and written reply. On
March 15, 2018, Plaintiff and two of his attorneys provided his oral reply to ADAG Schools and
another career Department of Justice attorney from the Justice Management Division, the
administrative arm of the Department. See generally Oral Resp. Tr. The hearing lasted more than
four hours. See id. at 1, 201. During the hearing, Plaintiff answered questions from his lawyers
and from ADAG Schools, and his lawyers presented arguments. See generally id. At the end of
the hearing, ADAG Schools reminded Plaintiff’s counsel that the Attorney General would make
the decision of whether or not to remove Plaintiff. Id. at 198–200. The next day, Plaintiff, through
his legal team, submitted an 11-page, single-spaced letter responding to the notice of proposed
removal. Letter from Bromwich to Schools (“Resp. Letter”) (March 16, 2018) (attached as Ex. 5).
In neither response, oral or written, did Plaintiff raise any concerns about the propriety of the
Attorney General’s involvement in the decision making process.
After “hav[ing] reviewed the entire record and carefully considered Mr. McCabe’s oral and
written responses,” ADAG Schools recommended that the Attorney General “sustain the charge[s]
that Mr. McCabe lacked candor under oath in the July 28, 2017 OIG interview,” lacked candor
under oath in the November 29, 2017 OIG interview, lacked candor during the May 9, 2017
8
interview with the Inspection Division Agents, and authorized the disclosure of an on-going FBI
investigation in contravention of FBI policy. Memo. from ADAG Schools to the Attorney General
(“ADAG Rec.”), at 1–6 (Mar. 16, 2018) (attached as Ex. 6). ADAG Schools did not endorse all
of the FBI’s recommendations, however, as he concluded that the evidence did not support the
conclusion that Plaintiff lacked candor in a meeting with the FBI Director because “[a]lthough the
preponderant evidence supports a finding that Mr. McCabe did not tell Mr. Comey that he
authorized the disclosure, the testimony is insufficient to support a finding that Mr. McCabe denied
being the source.” Id. at 5.
Having made these recommended findings, ADAG Schools recommended, as Assistant
Director Will had, that Plaintiff be “dismissed from the rolls of the FBI.” Id. at 6. He based his
recommendation primarily on the fact that the “standard penalty for lack of candor under oath is
dismissal” and that “[t]he substantiated findings of lack of candor under oath are compounded by
the finding of lack of candor not under oath, and the unauthorized disclosure finding.” Id. ADAG
Schools recognized that “McCabe ha[d] had a distinguished career in the FBI” but noted, “as Ms.
Will [had] observed, [that] he was the second highest-ranking official in the FBI, and he [wa]s
expected to handle himself with utmost integrity.” Id.
The Attorney General adopted the recommendation of ADAG Schools (and by extension
that of Assistant Director Will) that Mr. McCabe be removed. He wrote: “For the reasons stated
in the foregoing recommendation, I have decided that Andrew G. McCabe should be removed
from the Federal Bureau of Investigation and from the civil service.” Id.
In August 2019, Plaintiff filed his complaint. It includes five counts, but over a dozen
claims. Compl. ¶¶ 148–93. It names as defendants the Attorney General and the Director of the
FBI, in their official capacities, as well as the Department of the Justice and the FBI. Id. ¶¶ 18–
9
21. According to Plaintiff, these Defendants violated various statutes and regulations, the Due
Process Clause of the Constitution, and the First Amendment in the course of removing him from
the FBI and the Civil Service. Id. ¶¶ 148–93.
ARGUMENT
Plaintiff’s complaint raises (i) statutory and regulatory claims; (ii) due process claims; and
(iii) First Amendment claims. None of them withstands scrutiny. The statutory and regulatory
claims are precluded by the CSRA: It creates an exclusive remedial scheme for the sort of non-
constitutional employment-related grievances made by Plaintiff, but (with exceptions inapplicable
here) it precludes FBI employees from obtaining relief. The due process claims fare no better, as
they run aground on the lack of a protected property interest, waiver, and Plaintiff’s failure to
articulate an actionable claim. Finally, Plaintiff’s First Amendment claims, which are premised
on the assertion that Mr. McCabe was fired for his perceived political affiliation, come up short:
The Attorney General adopted the recommendations of two high-ranking Department of Justice
officials that Mr. McCabe be removed due to his lack of candor under oath.
I. The CSRA Precludes McCabe’s Statutory and Regulatory Claims
The first two counts of the Complaint contain an assortment of claims, among them claims
that Defendants violated various statutes and regulations in the course of removing Plaintiff from
the FBI and the Civil Service. See Compl. ¶¶ 148–69. For example, Plaintiff alleges that his
removal was ineffective because it occurred after 5:00 p.m. on a Friday, id. ¶ 151; was based on a
decision that used the incorrect verb tense, id. ¶ 152; and was made by the Attorney General, rather
than a lower-ranking Department of Justice official, id. ¶ 153. These claims lack merit, as do the
rest of the statutory and regulatory claims. But the Court need not reach their merits because the
CSRA precludes judicial review of such claims. See United States v. Fausto, 484 U.S. 439, 447
(1988); Graham v. Ashcroft, 358 F.3d 931, 935–36 (D.C. Cir. 2004).
10
In enacting the CSRA in 1978, Congress comprehensively reformed the relationship
between the federal government and its employees. It “replace[d] the haphazard arrangements for
administrative and judicial review of personnel action[s]” that were “part of the ‘outdated
patchwork of statutes and rules built up over almost a century.’” Fausto, 484 U.S. at 444 (quoting
S. Rep. No. 95-969, at 3 (1978)). Before the CSRA, there were multiple sources of authority
(statutes, executive orders, and regulations) governing employment matters, with various courts
around the country giving their own gloss to each. See id. at 444–45. Unsurprisingly, there was
“dissatisfaction with the wide variations in the kinds of decisions issued on the same or similar
matters.” Id. at 445 (cleaned up) (citation omitted). The CSRA brought order to this chaos. It
established an “integrated scheme of administrative and judicial review, designed to balance the
legitimate interests of the various categories of federal employees with the needs of sound and
efficient administration.” Id.
As part of this integrated scheme, the CSRA channels judicial review of most covered
claims through the Merit Systems Protection Board, and from there on to the U.S. Court of Appeals
for the Federal Circuit. 5 U.S.C. § 7703. It also establishes, among other things, a reticulated
remedial structure for claims involving: (i) personnel actions based on unacceptable performance,
5 U.S.C. § 4301 et seq. (“Chapter 43”), (ii) certain personnel actions taken in alleged violation of
the merit system principles, 5 U.S.C. § 2301 et seq. (“Chapter 23”), and (iii) certain defined major
personnel actions based on misconduct, 5 U.S.C. § 7501 et seq. (“Chapter 75”). See Fausto, 484
U.S. at 445–47. For example, Chapter 75 establishes that an “employee” (as that term is defined
at 5 U.S.C. § 7511) may be removed “only for such cause as will promote the efficiency of the
service,” 5 U.S.C. § 7513(a), and that an employee is entitled to certain procedural protections in
the event that his or her employing agency proposes removal, id. § 7513(b)–(d).
11
Crucially, the CSRA is not only comprehensive, but exclusive. In other words, with regard
to remedies for non-constitutional employment-related claims, with a few inapplicable exceptions,
“what you get under the CSRA is what you get.” Fornaro v. James, 416 F.3d 63, 67 (D.C. Cir.
2005) (Roberts, J.). The scheme’s exclusivity helps to ensure the uniformity that motivated the
enactment of the CSRA. See Grosdidier v. Chairman, Broad. Bd. of Governors, 560 F.3d 495,
497 (D.C. Cir. 2009). Moreover, the CSRA excludes certain categories of employees from the
remedies that would otherwise be available to them under Chapters 23, 43, and 75. The category
of employees carved out of all or part of the CSRA includes those employed by the FBI. Most
relevant for purposes of this case, Chapter 75 of the CSRA—regarding challenges to misconduct-
based personnel actions—does not apply to FBI personnel: “This subchapter does not apply to an
employee . . . whose position is within the . . . the Federal Bureau of Investigation . . . unless
subsection (a)(1)(B) of this section or section 1005(a) of title 39 is the basis for this subchapter’s
applicability.”4 5 U.S.C. § 7511(b)(8).
Plaintiff was dismissed from the FBI for conduct-based reasons. So, given the general
inapplicability of Chapter 75 of the CSRA to FBI personnel, he has no avenue to challenge his
removal under that statutory scheme. And, because the CSRA is not only comprehensive, but
exclusive, Plaintiff has no other avenue for raising his statutory and regulatory claims: “[T]he
exclusion of particular employees . . . from the CSRA [i]s not an invitation to those employees to
sue under other statutes but a ‘manifestation of a considered congressional judgment that they
4
So far as applicable to the FBI, the exception to the exception in Chapter 75 is for those FBI
employees who are “preference eligible”—certain military veterans or their family members. In
other words, for example, certain veterans who work for the FBI are covered by Chapter 75,
whereas the Bureau’s employees who don’t fall within this exception to the exception are not.
None of the allegations in the complaint indicate that Plaintiff possesses the qualifying military
experience necessary to fall within the band of covered FBI employees.
12
should not have statutory entitlement to review.’” Filebark v. U.S. Dep’t of Transp., 555 F.3d
1009, 1013 (D.C. Cir. 2009) (quoting Fausto, 484 U.S. at 448–49). Another court in this district
reached just this conclusion with respect to a challenge brought by another former FBI employee
removed for alleged misconduct. Lamb v. Holder, 82 F. Supp. 3d 416, 421 (D.D.C. 2015)
(explaining that a former FBI employee “is excluded from the CSRA provisions regarding
termination, and therefore his termination is not subject to judicial review”).5
Indeed, the D.C. Circuit has previously ruled that the CSRA precludes the very kinds of
claims raised by Plaintiff here. Plaintiff’s claims that Defendants violated their own regulations
in taking an adverse personnel action are known as Vitarelli claims. See Vitarelli v. Seaton, 359
U.S. 535, 539–40 (1959). In Graham, 358 F.3d at 935, the D.C. Circuit held, in a suit brought by
an FBI agent, that the CSRA precluded review of Vitarelli claims: “[I]t is clear that judicial review
of Graham’s personnel claims under Vitarelli is precluded by the CSRA.” As for Plaintiff’s
statutory claims, while they do not identify a cause of action, the APA is the most likely candidate,
but the D.C. Circuit has “long held that federal employees may not use the Administrative
Procedure Act to challenge agency employment actions.” Filebark, 555 F.3d at 1010. In short,
nothing in the nature of Plaintiff’s specific claims takes them outside the ambit of the CSRA’s
preclusive effects.
A 2009 D.C. Circuit decision well summarizes the state of the law and, by extension, the
reasons for dismissing Plaintiff’s statutory and regulatory claims based on the preclusive effects
of the CSRA:
5
The CSRA does not preclude judicial review of claims under certain anti-discrimination statutes,
such as Title VII of the Civil Rights Act, see 5 U.S.C. § 2302, and the D.C. Circuit has never
“suggest[ed] that [it] precludes the exercise of federal jurisdiction over the constitutional claims
of federal employees and job applicants altogether,” Spagnola v. Mathis, 859 F.2d 223, 229–30
(D.C. Cir. 1988).
13
As our Court has emphasized, the CSRA is comprehensive and

exclusive. . . . We have emphasized, moreover, that the CSRA is the
exclusive avenue for suit even if the plaintiff cannot prevail in a
claim under the CSRA. As we have explained, Congress designed
the CSRA’s remedial scheme with care, “intentionally providing—
and intentionally not providing—particular forums and procedures
for particular kinds of claims.” Filebark, 555 F.3d at 1010.
Allowing employees to end-run the CSRA would undermine
Congress’s efforts to foster a “unitary and consistent Executive
Branch position on matters involving personnel action.” Fausto,
484 U.S. at 449, 108 S.Ct. 668; see also Graham, 358 F.3d at 934.
Therefore, we have told federal employees, “what you get under the
CSRA is what you get.” Fornaro, 416 F.3d at 67.
Grosdidier, 560 F.3d at 497. Accordingly, the Court should dismiss Plaintiff’s statutory and
regulatory claims, which are found in Counts I and II of the Complaint, for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1). See, e.g., Gardner v. United States,
No. CIV A. 96-1467, 1999 WL 164412, at *7 (D.D.C. Jan. 29, 1999), aff’d, 213 F.3d 735 (D.C.
Cir. 2000) (dismissing claims under Rule 12(b)(1) on the basis of CSRA preclusion).
II. Plaintiff’s Constitutional Due Process Claims Lack Merit
Plaintiff received notice of the bases of his proposed removal and both provided a written
response and participated in an oral hearing before the Department of Justice’s then top career
official, ADAG Scott Schools. See generally Twist v. Meese, 854 F.2d 1421, 1428 (D.C. Cir.
1988) (“[G]iven the fact that Twist received advance notice, an on-the-record hearing, and an
opportunity to submit a written answer to the charges against him, even if Twist had a property
right to his continued employment, which we have held he does not, he has received all the process
to which he would be due.”). All the while, Plaintiff was assisted by lawyers from two well-
regarded law firms. But the outcome of this process obviously was not what Mr. McCabe sought,
as former Attorney General Sessions adopted ADAG Schools’ recommendation that Plaintiff be
removed from the FBI and the Civil Service. (ADAG Schools’ recommendation tracked that of
14
the career head of the FBI’s Office of Professional Responsibility, Assistant FBI Director Candice
Will.) He thus contends that he was denied due process.
Plaintiff raises two constitutional due process claims. First, Plaintiff alleges that former
Attorney General Sessions was biased. Second, he contends that he lacked adequate time to
prepare a response to the notice of proposed removal.6 Plaintiff contends that these alleged due
process violations “depriv[ed] him of his property interest in his employment and full vested
pension and related benefits,” Compl. ¶ 158, and “deprived [him] of his constitutionally protected
liberty interest in his reputation,” id. ¶ 166. These claims should be dismissed or, in the alternative,
the Court should enter summary judgment in favor of Defendants.
A. Plaintiff Has No Property Interest in His Former Job or Its Benefits
“The first inquiry in every due process challenge is whether the plaintiff has been deprived
of a protected interest in ‘property’ or ‘liberty.’ Only after finding the deprivation of a protected
interest do [courts] look to see if the [government’s] procedures comport with due process.” Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) (citation omitted). Plaintiff has not been
deprived of a protected property interest. An employee has a property interest in a government
job only if, under the law, “he did not serve in his job at his employer’s ‘will,’ but he could be
removed only ‘for cause.’” Thompson v. Dist. of Columbia, 530 F.3d 914, 918 (D.C. Cir. 2008)
(citation omitted). But Plaintiff did not enjoy for-cause removal protections: Chapter 75 of the
CSRA provides for-cause removal protections for many if not most federal employees, 5 U.S.C.
§§ 7511, 7513, but, with a few exceptions inapplicable to Plaintiff, it excludes FBI employees, 5
6
Plaintiff’s complaint may also suggest that the alleged violations of an agency’s regulations
constitute a per se due process violation. See Compl. ¶ 158. This argument is meritless. E.g.,
Crosby-Bey v. Dist. of Columbia, 786 F.2d 1182, 1186 (D.C. Cir. 1986). Similarly meritless is the
suggestion, see Compl. ¶158, that any alleged statutory violations constitute a per se due process
violation. See Duffy v. Selsky, No. 95-cv-0474, 1996 WL 407225, at *8 (S.D.N.Y. July 18, 1996).
15
U.S.C. § 7511(b)(8). Indeed, numerous courts—including one in this district—have held that FBI
personnel lack a protected property interest in their jobs. See, e.g., Lamb, 82 F. Supp. 3d at 424–
25; Mack v. United States, 814 F.2d 120, 123 (2d Cir.1987); Painter v. FBI, 694 F.2d 255, 257
(11th Cir. 1982). Thus, as a non-preference-eligible FBI employee, Plaintiff was excluded from
the CSRA’s for-cause protections and, by extension, any viable argument that he has a property
interest in his former job. Absent a protected property interest in his job, Plaintiff cannot seek
reinstatement as a remedy for any alleged due process violations. See Doe v. U.S. Dep’t of Justice,
753 F.2d 1092, 1102 (D.C.Cir.1985); Dave v. D.C. Metro. Police Dep’t, 926 F. Supp. 2d 247, 249
n.1 (D.D.C. 2013).
Plaintiff’s argument that he has a property interest in the employment benefits of his former
job fares no better. By statute, a federal law enforcement officer is “entitled to a[] [retirement]
annuity” immediately “after becoming 50 years of age and completing 20 years of service as a law
enforcement officer,” unless “remov[ed] for cause on charges of misconduct or delinquency.” 5
U.S.C. § 8412(d)(2); see Compl. ¶ 36 (indicating that Plaintiff is basing his pension-entitlement
claim on § 8412(d)(2)). But Mr. McCabe did not satisfy the requirements for entitlement to this
law-enforcement officer annuity because he was not employed as a law enforcement officer “after
becoming 50 years of age and completing 20 years of service.” Thus, he has no protected property
interest in the annuity. D.C. Circuit precedent squarely supports this conclusion. In a similar
context, the D.C. Circuit held that “a retiree who meets [age, service, or disability] requirements
acquires an interest protected by the due process clause in benefits at the level provided by the law
in effect at the time he or she becomes eligible.” Am. Postal Workers Union, AFL-CIO v. U.S.
Postal Service, 707 F.2d 548, 554 (D.C. Cir. 1983) (emphasis added); see also id. (“Potential
retirees have no protected property interest in any particular level of retirement benefits.”
16
(emphasis omitted)). Accordingly, as Mr. McCabe did not meet the age and service requirement
for a law-enforcement officer annuity at the time he left federal service, he did not acquire a
protected property interest in it. See also Bloch v. Powell, 227 F. Supp. 2d 25, 38 (D.D.C. 2002),
aff’d, 348 F.3d 1060 (D.C. Cir. 2003) (“[P]laintiff was not qualified for annuity and therefore had
no cognizable property rights to such an annuity in the first place.”). Since Mr. McCabe has no
property interest in the annuity, it follows that he does not have a property interest in the continued
receipt of his medical benefits, either. 5 U.S.C. § 8905(b) (stating that “[a]n annuitant” who meets
certain requirements “may continue his enrollment” in a health benefits plan).
Plaintiff is thus left with the assertion that he has a protected liberty interest in his reputation
that has been affected by Defendants’ actions. But statements about Plaintiff’s misconduct rest on
a solid foundation, as demonstrated by the IG’s report. See Aref v. Lynch, 833 F.3d 242, 258 n.11
(D.C. Cir. 2016) (“Most important here, the reputation-tarnishing statement must be false.”); see
generally OIG Rpt. And Defendant has not been sidelined by his removal: He has published a
book7; joined CNN as on on-air contributor; and secured the services of a speaker’s bureau that
also represents, among others, former Speaker of the House Paul Ryan, Pulitzer-Prize winning
reporter Bob Woodward, and former Senate Majority leader George Mitchell, see
https://www.leadingauthorities.com/speakers. That said, the Court need not determine whether
Plaintiff’s liberty-interest allegations are persuasive because his claims otherwise fail.
B. Plaintiff Has Waived His Bias Allegations
Plaintiff waived the allegation that former Attorney General Sessions was biased by not
raising it at the administrative level. D.C. Circuit precedent is clear: “[C]laims of bias must be
7
Andrew G. McCabe, The Threat: How the FBI Protects America in the Age of Terror and
Trump (2019), https://www.amazon.com/Threat-Protects-America-Terror-Trump-
ebook/dp/B07HFMYQPG.
17
raised as soon as practicable after a party has reasonable cause to believe that grounds for
disqualification exist.” Vill. of Bensenville v. Fed. Aviation Admin., 457 F.3d 52, 73 (D.C. Cir.
2006) (deeming waived claims of bias that were not raised before the agency); Pharaon v. Bd. of
Governors of Fed. Reserve Sys., 135 F.3d 148, 155 (D.C. Cir. 1998) (same); Marcus v. Dir., Office
of Workers’ Comp. Programs, U. S. Dep’t of Labor, 548 F.2d 1044, 1051 (D.C. Cir. 1976) (same).
There is a straightforward reason why “[i]t will not do for a claimant to suppress his misgivings
while waiting anxiously to see whether the decision goes in his favor”: “A contrary rule would
only countenance and encourage unacceptable inefficiency in the administrative process.”
Marcus, 548 F.2d at 1051; Cayuga Nation v. Bernhardt, 374 F. Supp. 3d 1, 20 (D.D.C. 2019)
(“This requirement prevents parties from sitting on potential claims of disqualification and raising
those claims only in the case of an unfavorable outcome.”). In short, a plaintiff must raise claims
of bias at the administrative level to enable the agency to cure any bias or otherwise address claims
of bias, rather than sitting on his hands and raising such claims only if he gets an unfavorable
decision from the agency.
During the administrative proceedings prior to his dismissal, Plaintiff did not level any
allegations of bias against the former Attorney General. He was given notice of the Attorney
General’s role, at the latest, on March 8, 2018, when ADAG Schools furnished him with a copy
of DOJ Order 1202. See DOJ Order 1202, at 14. And Plaintiff’s counsel were reminded of the
Attorney General’s role at the oral hearing. See generally Oral Resp. Tr. at 198:20–200:19; see
also id. at 198:20–199:2 (“Mr. Schools: The process is that I do my thing and make . . . effectively
[what will] be a recommendation to the [A]ttorney [G]eneral. And he either endorses or changes
it.”). At the time of the administrative proceedings, Plaintiff (and his counsel) thus possessed the
information on which he now bases his bias allegations. See Compl. ¶ 164. Yet Plaintiff did not
18
raise any allegations of bias at the oral hearing or in his written response. See Oral Resp. Tr.; Resp.
Letter.8
Thus, Plaintiff did not raise his claims of bias “as soon as practicable.” Vill. of Bensenville,
457 F.3d at 73. Instead, he brought them only after learning that the Agency’s decision, which
was based on the recommendations of two senior career officials, did not go in his favor. His bias
claims have thus been waived.9
C. Plaintiff Has Not Stated a Plausible Claim of Bias
In any case, Plaintiff has not pleaded a plausible claim that former Attorney General
Sessions harbored any bias against him. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The
heart of Plaintiff’s bias allegation against the former Attorney General is that “Defendants had
8
The transcript of the oral hearing and the response letter from Plaintiff’s counsel to ADAG
Schools were incorporated into the complaint by reference. See Compl. ¶¶ 118, 123, 124; Slovinec
v. Georgetown Univ., 268 F. Supp. 3d 55, 59 (D.D.C. 2017), aff’d, No. 17-7122, 2018 WL 1052650
(D.C. Cir. Jan. 26, 2018); Strumsky v. Washington Post Co., 842 F.Supp.2d 215, 217–18 (D.D.C.
2012). Accordingly, the Court can rely on them under Rule 12(b)(6). Abhe & Svoboda, Inc. v.
Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007). The same is true of the Attorney General’s Decision
(including the recommendation by ADAG Schools), the FBI’s recommendation, and the FBI’s
SES policy. See Compl. ¶¶ 115, 126, 160-61. In the alternative, the Court can enter judgment in
Defendants’ favor under Rule 56.
9
Plaintiff asserts that he was demoted from the position of Deputy Director in January 2018, see,
e.g., Compl.¶ 7, and, therefore, that the Attorney General should not have been the decision maker.
See Compl. ¶ 117. This assertion is incorrect. Plaintiff was not demoted from the Deputy Director
position prior to his removal. In his written response to the notice of proposed removal, Plaintiff’s
counsel referred to Mr. McCabe as the “FBI Deputy Director.” Resp. Letter at 1. Moreover,
Plaintiff’s counsel implicitly acknowledged that Plaintiff had not been demoted when he stated
during the hearing with ADAG Schools that, “if it’s a suspension for more than 30 days or a
termination[,] that goes to [the Attorney General].” Oral Resp. Tr. at 199:13–14. That would be
true only if—as was the case—Mr. McCabe was still the Deputy Director. See DOJ Order 1202
at 14. Finally, the FBI’s and ADAG Schools’ recommendations regarding Plaintiff’s removal refer
to him as the Deputy Director of the FBI. E.g., OPR, Report of Investigation at 1 (Mar. 6, 2018)
(attached as Ex. 1) (“McCabe . . . is an ES-0 Deputy Director.” (emphasis added)); ADAG Rec. at
1 (“Purpose: To provide a recommendation regarding the proposed removal of FBI Deputy
Director Andrew G. McCabe) (emphasis added). Since Plaintiff was the Deputy Director of the
FBI at the time of his removal, under DOJ Order 1202, the Attorney General was the appropriate
decision maker. DOJ Order 1202, at 14.
19
already determined Plaintiff’s fate, and the agency decision-maker served merely to rubber-stamp
Defendants’ (and Trump’s) desired outcome.” Compl. ¶ 164. But, under Iqbal, this is just the sort
of conclusory allegation that the Court need not—indeed, cannot—credit. 556 U.S. at 680–81
(concluding that allegations “that Ashcroft was the ‘principal architect’ of this invidious
policy . . . and that Mueller was ‘instrumental’ in adopting and executing it” are “conclusory and
not entitled to be assumed true” (citation omitted)). Crucially, Plaintiff does not allege that former
Attorney General Sessions made any statements, publicly or privately, indicating that he had an
unalterably closed mind with respect to the McCabe employment matter. See Throckmorton v.
Nat’l Transp. Safety Bd., 963 F.2d 441, 445 (D.C. Cir. 1992) (explaining that the test for bias under
the Due Process clause is whether the agency decision maker has “a fixed opinion—a closed mind
on the merits of the case so as to disqualify him for prejudice” (citation omitted)); Pharaon v. Bd.
of Governors of Fed. Reserve Sys., 135 F.3d 148, 155 (D.C. Cir. 1998) (same). Plaintiff does
allege that former Attorney General Sessions asked FBI Director Wray to remove him (i.e.,
Plaintiff) in August 2017. Compl. ¶ 99. Assuming that this request was made (as is appropriate
in a motion to dismiss under Rule 12(b)(6)), it does not plausibly suggest that former Attorney
General Sessions had a “closed mind” in March 2018. The former Attorney General’s alleged
request to Director Wray was made in August 2017, seven months prior to Mr. McCabe’s removal.
During those seven months, the Attorney General had the power to remove Plaintiff, see DOJ
Order 1202, at 14, but did not so. This demonstrates that, whatever concerns the Attorney General
allegedly had about Plaintiff’s continued employment with the FBI, he remained open-minded
about the matter. In any case, the alleged expression of an opinion about whether Plaintiff should
be removed in August 2017 for one reason fails to plausibly suggest that the Attorney General
lacked an open mind in March 2018 with respect to whether a different rationale justified
20
Plaintiff’s removal. Indeed, courts have held that, under the Due Process Clause, a judge is
permitted to decide a case even when he has previously expressed a view on the very policy
question raised in the case. See Ass’n of Nat. Advertisers, Inc. v. F.T.C., 627 F.2d 1151, 1171 n.51
(D.C. Cir. 1979) (“Even judges are free to decide cases involving policy questions on which they
previously have expressed a view.”). Similarly, Plaintiff does not make any allegations regarding
actions taken by the former Attorney General that indicate he was biased.
Instead, Plaintiff’s claim that the former Attorney General was biased is premised
exclusively on two points: 1) the Attorney General dismissed Plaintiff; and 2) the President made
statements about Plaintiff indicating that his removal was (or would be) warranted. Plaintiff’s
dismissal does not itself indicate bias, however. The Inspector General concluded that Plaintiff
had lacked candor on four occasions, including three times while under oath. OIG Rpt. at 2. Based
on the Inspector General’s investigation and careful consideration of the Douglas factors and the
FBI’s offense code, the long-serving career official in charge of the FBI’s Office of Professional
Responsibility, Assistant Director Will, recommended that Plaintiff be removed from the FBI and
the Civil Service. And the highest-ranking career official at the Department of Justice did the
same. Thus, Plaintiff’s dismissal was the rational culmination of a process based on the
conclusions and recommendations of the Inspector General and two high-ranking career
officials—not support for an allegation of bias.
Nor do the President’s statements about Plaintiff support plausible allegations of bias
against the former Attorney General. Imputing any perceived bias of the President to the former
Attorney General is inconsistent with the “presumption of honesty and integrity” that is enjoyed
by those “serving as adjudicators.” Withrow v. Larkin, 421 U.S. 35, 47 (1975). And there is no
indication of any facts that might overcome that presumption. Simple conjecture by Plaintiff
21
certainly cannot do so. See, e.g., Holmes v. Poskanzer, 342 F. App’x 651, 653 (2d Cir. 2009)
(“Here, the Plaintiffs have not alleged any facts to support actual bias, conflict of interest, or prior
involvement by any of the Defendants who participated in the disciplinary hearing process, and
thus, their bald assertion that Appellees Paul Zuckerman and Jonathan Raskin were not impartial
is insufficient to state a claim.”). Moreover, crediting Plaintiff’s theory, which seems to be that all
political officials in the Department should be presumed to be biased because of the President’s
statements, would lead to an absurd result—namely, all politically appointed officials would be
cut out of the process of deciding whether to remove a high government official, the Deputy
Director of the FBI. But in our constitutional system, the removal of high government officials is
entrusted to executive “Officers,” who are politically appointed officials like the Attorney General.
See U.S. CONST. art. II, § 2, cl. 2 (“Congress may by Law vest the Appointment of such inferior
Officers, as they think proper, in the President alone . . . or in the Heads of Departments.”); Free
Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 509, (2010) (“Under the
traditional default rule, removal is incident to the power of appointment.”). There is a good reason
for that. Such Officers are often most answerable to the people: “Our Constitution was adopted
to enable the people to govern themselves, through their elected leaders.” Free Enterprise Fund,
561 U.S. at 499 (holding unconstitutional a statute that interposed two levels of tenure protection
between the President and members of a government board). Plaintiff’s theory should be rejected
on that basis as well. And besides, the outcome would have been the same even if politically
appointed officials had been removed from the process, as Assistant Director Will and ADAG
Schools, both high-ranking career officials—the latter being the highest-ranking career official in
the Department of Justice—concluded that Mr. McCabe should be removed.
22
In sum, Plaintiff’s claim of bias against former Attorney General Sessions “stops short of
the line between possibility and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678
(citation omitted). Dismissal, or the entry of summary judgment in favor of Defendants, is
warranted.
D. Plaintiff Had Ample Time to Respond to the Notice of Proposed Removal
Plaintiff alleges that he “did not receive a meaningful opportunity to evaluate and respond
to the allegations against him, in violation of . . . the Due Process Clause,” because he had less
than seven days to prepare a response to the notice of proposed removal. See, e.g., Compl. ¶ 162;
see Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985) (“The essential requirements
of due process . . . are notice and an opportunity to respond.”). Not so: Plaintiff, aided by multiple
lawyers, had ample time to respond to the 15-page notice of proposed removal, which centered on
conclusions that he had first seen weeks earlier, when he reviewed a draft of the Inspector
General’s Report.
“[D]ue process is flexible and calls for such procedural protections as the particular
situation demands.” See Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Plaintiff received all of
the process that the situation demanded. As an initial matter, Plaintiff learned of the conclusions
underlying the notice of proposed removal weeks before the notice was delivered to him. The
bases for Plaintiffs proposed removal—his lack of candor in interviews on October 31, 2016, May
9, 2017, July 28, 2017, and November 29, 2017—were discussed at length in the Inspector
General’s Report. Compare OIG Rpt. at 27–32, with FBI Rec. at 12–14; see also ADAG Rec. at
1 (notice of proposed removal was “consistent with the conclusions of the Inspector General”);
Compl. ¶ 115 (noting that the proposed removal decision relied on the OIG Report). A draft of
the Inspector General’s Report was first made available to Plaintiff on February 21, 2018, Oral.
23
Resp. Tr. at 165:6–8. Thus, Plaintiff was aware of the conclusions that undergirded the removal
decision 22 days before his March 15 oral response to the notice of proposed removal, and 23 days
before he submitted his written response to the notice of proposed removal on March 16. See Oral
Resp. Tr. at 1; Resp. Letter at 1. Courts consider notice of related proceedings in evaluating
whether, as a matter of law, a plaintiff was afforded adequate response time. See, e.g., Louisiana
Ass’n of Indep. Producers & Royalty Owners v. F.E.R.C., 958 F.2d 1101, 1114 (D.C. Cir. 1992)
(evaluating process provided in light of earlier proceedings regarding the same issue); Johnson v.
George, No. 05-cv-157-MPT, 2007 WL 1697276, at *8 (D. Del. June 12, 2007), aff’d, 299 F.
App’x 139 (3d Cir. 2008) (noting that “[t]wo and a half months prior to the hearing, Johnson
received the Santora Report which outlined the allegations of financial abuse which were the basis
for her dismissal”).
Moreover, the notice of proposed removal spanned only 15 substantive pages. See
generally FBI Rec. Responding to a 15-page document in a week might be a burdensome task for
a team of experienced attorneys, but that task is not constitutionally problematic, especially when
the facts and conclusions have been known to the respondent for weeks. Indeed, another court in
this District found that a plaintiff who had less than two weeks to respond to a 159-page document
had been afforded an adequate opportunity to respond under the Due Process Clause:
After being served with the Special Committee’s 159–page final

Report on December 4, Judge McBryde enjoyed less than two weeks
to prepare his response thereto in time for the Judicial Council to
consider it in advance of the meeting. . . . Nonetheless, . . . Judge
McBryde managed to prepare several extensive responses. The
Court cannot say that this interval, abbreviated as it may have
seemed to Judge McBryde, deprived Judge McBryde of notice so as
to violate his due process rights.
McBryde v. Comm. to Review Circuit Council Conduct & Disability Orders of the Judicial
Conference of the U.S., 83 F. Supp. 2d 135, 168 (D.D.C. 1999), aff’d in part, vacated in part, 264
24
F.3d 52 (D.C. Cir. 2001). Just as in McBryde, Plaintiff here prepared “extensive responses.”
Specifically, Plaintiff provided testimony and (through his lawyers) argument in an oral hearing
that lasted about 4 hours. See Oral Resp. Tr. at 1, 202. And he supplemented his oral hearing
testimony and argument with an 11-page, single-spaced written response to the notice of proposed
removal.
As a corollary to his allegation that seven (days) is not enough, Plaintiff alleges that it was
improper for the Department to consider his looming retirement date when establishing the
timeframe for resolving his notice of proposed removal. See, e.g., Compl. ¶ 116. But why is that?
No statute, regulation, or policy requires the FBI or Department of Justice to allow employees
suspected of serious wrongdoing to retire before the FBI or the Department can evaluate their
conduct. Nor does the Constitution: Due Process is flexible, meaning it accounts for the
circumstances at hand, see Morrissey, 408 U.S. at 481, and one of the relevant circumstances in
this case was Mr. McCabe’s imminent retirement date. Ignoring an impending retirement date in
situations like this one would hamper the ability of the FBI and the Department of Justice to punish
serious misconduct by its most senior employees, thereby incentivizing bad behavior by employees
nearing the end of their careers. Whatever else due process requires, it does not require that.
And lest he claim otherwise, Mr. McCabe could not have been surprised by the fact that
the Department gave him seven days to respond to the notice of proposed removal. As noted
earlier, FBI policy states that “if there is reasonable cause to believe the employee has committed
a crime for which a sentence of imprisonment can be imposed, the advance notice may be curtailed
to as little as seven days.” FBI SES Policy at 16. As a long-time SES employee, Compl. ¶ 27, and
the Deputy Director of the FBI, Mr. McCabe was undoubtedly aware of this fact (or should have
been), and he certainly recognized (or should have), that the Inspector General’s conclusions
25
would trigger this provision. Also, as already noted, Mr. McCabe had a head start, having been
aware of the OIG’s conclusions for weeks by the time the seven-day clock started ticking.
In short, Plaintiff received due process. He knew of the conclusions on which his removal
notice was based for weeks. The notice of proposed removal ran only 15 pages. Plaintiff, aided
by multiple attorneys, put on hours of testimony and submitted a lengthy written response to the
notice. He was heard. And just as in McBryde, the “interval, abbreviated as it may have seemed
to [Plaintiff]” did not deprive him of his due process rights. 83 F. Supp. 2d at 168.
III. Plaintiff’s Removal Did Not Violate the First Amendment
Finally, Plaintiff alleges that he was removed on an accelerated schedule based on the
perception that he was a partisan opponent of the President’s, in violation of his First Amendment
right to free association and political expression. Compl. ¶¶ 171, 174, 182. Specifically, Plaintiff
alleges that he was unlawfully removed because of: “(a) his refusal to pledge personal loyalty to
[the President], (b) his decision not to vote for [the President] in the 2016 U.S. presidential
election . . . (c) his wearing of a T-shirt in 2015 . . . in support of Dr. McCabe’s Virginia state
senate campaign, and (d) his marriage to Dr. McCabe and the improper attribution of her political
activity to him.” Compl. ¶ 182.
Generally speaking, the First Amendment protects government employees from adverse
employment action on the basis of political belief or association. Elrod v. Burns, 427 U.S. 347,
360 (1976). To prevail on his First Amendment claim,10 Plaintiff must prove that political
10
Plaintiff purports to bring two First Amendment claims—one based on political expression and
one based on political association, Compl. ¶¶ 170–87—but in fact his allegations are properly
categorized only as political-association claims. See, e.g., Thompson v. Shock, 852 F.3d 786, 792–
93 (8th Cir. 2017) (applying the political-affiliation, rather than political expression, line of cases
to an employee who was removed after he campaigned for an opposing candidate “by attending
fundraisers, placing campaign signs in his yard, and wearing a campaign T-shirt”). Regardless,
26
association “was a ‘substantial’ or ‘motivating’ factor” behind his removal. Clark v. Library of
Cong., 750 F.2d 89, 101–02 (D.C. Cir. 1984) (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 287 (1977)). If he does so, then the burden shifts to the government to show,
by a preponderance of the evidence, “that it would have reached the same decision” irrespective
of Plaintiff’s political affiliation. Mt. Healthy, 429 U.S. at 287; Wilburn v. Robinson, 480 F.3d
1140, 1149 (D.C. Cir. 2007); Williams v. Johnson, 701 F. Supp. 2d 1, 18 (D.D.C. 2010) (stating
that a defendant may prevail on summary judgment if it can demonstrate that that it “would have
taken the same action even in the absence of any protected activity”). Plaintiff must then be able
to refute that showing by proving that the government’s justifications for his removal were
pretextual. Wilburn, 480 F.3d at 1140.
That, Plaintiff cannot do. The documents charting the course of the Attorney General’s
removal decision establish that the but-for cause behind Plaintiff’s removal was his lack of
candor.11 In other words, the government would have reached the same decision regardless of
what any official believed about Plaintiff’s political affiliation.
Recall that the Inspector General and two high-ranking Department of Justice career
officials determined that Plaintiff lacked candor on three separate occasions. The OIG’s February
2018 Report lays out in meticulous detail the factual predicate for the lack-of-candor findings,
which stemmed from Plaintiff’s statements to the OIG and the FBI’s Inspection Division over the
course of several months. See generally OIG Rpt. Assistant Director Will conducted a separate
because the Mt. Healthy test applies to either claim, see Clark v. Library of Congress, 750 F.2d
89, 101 (D.C. Cir. 1984), whether this is a free speech or free association claim does not change
the result here: Plaintiff’s removal was based on lack-of-candor findings rather than any protected
activity.
11
Again, even though Plaintiff alleges that Defendants unlawfully demoted Plaintiff as well,
Plaintiff was, in fact, not demoted. See supra, note 9.
27
review of the OIG’s findings, found that “the allegations [were] substantiated,” and thus
recommended—in keeping “with precedent” and the FBI’s “Penalty Guidelines”—that Plaintiff
be removed from the FBI. FBI Rec. at 1, 15. And after considering Plaintiff’s oral and written
response to Assistant Director Will’s recommendation, ADAG Schools recommended that the
Attorney General concur in the proposal to remove Plaintiff from his position because of his lack
of candor. ADAG Rec. at 6. In his recommendation, ADAG Schools emphasized that Plaintiff’s
lack of candor under oath was “compounded” by his lack of candor not under oath and his
revelation of an ongoing investigation. Id. Finally, “[f]or the reasons stated” by ADAG School’s
recommendation—that is, because of Mr. McCabe’s lack of candor and his revelation of an
ongoing investigation—the Attorney General ordered Mr. McCabe removed. Id. at 6. Neither the
recommendations nor the Attorney General’s order offer politically motivated reasons for
Plaintiff’s removal. Plaintiff’s First Amendment claim therefore cannot survive summary
judgment. See De Llano v. Berglund, 282 F.3d 1031, 1037 (8th Cir. 2002) (“The dismissal notice
given to [the plaintiff] outlines a number of reasons for his termination and those reasons were
substantiated in two separate hearings. Not one of the reasons stated for his termination related to
[protected First Amendment activity].”).
Indeed, given the independent lack-of-candor determinations, Plaintiff’s removal was quite
unremarkable. As Assistant Director Will explained in her letter recommending removal, “all FBI
employees know that lacking candor under oath results in dismissal.” FBI Rec. at 15; see also id.
at 14 (stating that dismissal is the standard penalty for lack of candor under oath). ADAG Schools
affirmed, too, that “the standard penalty for lack of candor under oath is dismissal.” ADAG Rec.
at 6. Plaintiff does not—and cannot—allege that removal is not the standard penalty. The Attorney
General’s removal decision was thus a routine application of standard FBI protocol.
28
Of course, that Plaintiff occupied the second-highest position at the FBI did not make the
FBI’s standard removal penalty any less applicable to him. Rather, in the Department’s view, it
made his lack of candor all the more egregious. To be sure, both Assistant Director Will and
ADAG Schools acknowledged Mr. McCabe’s “distinguished career in the FBI,” ADAG Rec. at 6,
and his “truly outstanding performance record,” FBI Rec. at 15. As Plaintiff himself asserts, it
was his distinguished service that elevated him to the position of Deputy Director, which is “the
FBI’s second-in-command and the highest attainable career role in the FBI for a civil servant such
as” himself. Compl. ¶ 29. But the importance of Plaintiff’s senior leadership role ultimately
weighed against him in the Department’s analysis of the proper sanction: As the “second highest-
ranking official in the FBI,” ADAG Schools explained, Mr. McCabe was “expected to handle
himself with utmost integrity.” ADAG Rec. at 6; FBI Rec. at 15. And as Assistant Director Will
put it, “integrity is our brand. Without it, we are nothing.” FBI Rec. at 15. The serious and
“substantiated” findings that Mr. McCabe lacked candor—both under oath and not under oath—
thus provided ample justification for his removal from the FBI and the Civil Service. Indeed,
given standard FBI protocol, removal was the natural, and expected, result of such findings.
Plaintiff now attempts to use the First Amendment as a shield against that unwanted consequence.
But because the Attorney General “would have reached the same decision” irrespective of
Plaintiff’s perceived political affiliation, Defendants are entitled to summary judgment on
Plaintiff’s First Amendment claim.12 Wilburn, 480 F.3d at 1149.
In attempts to undermine the propriety of his removal, Plaintiff suggests that every
Department decision maker knew that the OIG investigation and the removal process were a sham,
12
The timing of Plaintiff’s removal does not change the outcome here—if Plaintiff’s removal did
not run afoul of the First Amendment, then neither did the pace at which the removal decision was
made.
29
driven only by political concerns. Compl. ¶¶ 178–79. But the facts do not bear out that position.
Plaintiff insinuates, for instance, that the OIG—an independent investigative agency—initiated its
investigation into Plaintiff because of political pressure from the President. Id. ¶¶ 97, 103, 178–
79. The OIG did not act at the President’s, or even its own, behest, however; the OIG opened its
investigation upon a referral from the FBI’s Inspection Division because of growing concerns over
Plaintiff’s forthrightness. OIG Rpt. at 1. And the Inspection Division began its investigation in
May 2017 because they were concerned about “someone at the FBI leaking the Deputy Director’s
private conversations to the media.” OIG Rpt. at 15. Plaintiff also contends that he was
investigated and removed despite there being “no lawful basis” for doing so, Compl. ¶ 179, thereby
implying that the OIG’s findings were falsified. Yet the OIG’s detailed, nearly 35-page report lays
out all the verifiable evidence it considered to reach its conclusions. See generally OIG Rpt. And
two career officials in the Department of Justice—Assistant Director Will and ADAG Schools—
reviewed those same findings and found they were substantiated. See generally FBI Rec.; ADAG
Rec. ADAG Schools did so after the benefit of a four-hour oral hearing and Plaintiff’s written
response to the initial removal recommendation. See generally Oral Resp. Tr. And both officials
carefully considered, accepted, and rejected the OIG’s findings to the extent they found those
findings supported by the evidence. See FBI Rec. at 1 n.1; ADAG Rec. at 5. Plaintiff simply
cannot show that any Department officials worked in concert to manufacture an investigation and
initiate a removal proceeding as pretext to remove him for politically motivated reasons. Because
Plaintiff cannot rebut the evidence that he would have been removed regardless of his perceived
political affiliation, Defendants are entitled to summary judgment in their favor under Rule 56.
Wilburn, 480 F.3d at 1149.
30
CONCLUSION
For the above stated reasons, the Court should dismiss certain claims in Plaintiff’s
complaint and enter judgment in favor of Defendants as to the rest.
JOSEPH H. HUNT
CHRISTOPHER R. HALL

JUSTIN M. SANDBERG
KYLA M. SNOW (Ohio Bar No. 96662)
Trial Attorney
Branch
1100 L Street, NW
Phone: (202) 514-5838
Fax: (202) 616-8460
31

)
)
Plaintiff, )
v. )
)
al., )
)
Defendants. )
)
)
STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE

ISSUE
As required by Local Civil Rule 7(h)(1), and in support for their Motion for Summary
Judgment, Defendants hereby submit the following statement of material facts as to which there
is no genuine issue.
1. Andrew G. McCabe (“Plaintiff” or “Mr. McCabe”) became a Federal Bureau of
Investigation (“FBI”) employee in 1996. Compl. ¶ 23.
2. Plaintiff became a member of the FBI Senior Executive Service (“SES”), see 5 U.S.C.
§ 3151, in 2009. Compl. ¶ 27.
3. On February 1, 2016, Plaintiff became the FBI’s Deputy Director. Compl. ¶ 29.
4. In May 2017, the FBI’s Inspection Division (“INSD”) began investigating whether
information published in an October 30, 2016 Wall Street Journal article “was an
unauthorized leak and, if so, who was the source of the leak.” U.S. Department of Justice,
Office of Inspector General, “A Report of Investigation of Certain Allegations Relating to

Former FBI Deputy Director Andrew McCabe” (“OIG Rpt.”), at 1, 14 (Feb. 2018),
5. Pursuant to that investigation, Inspection Division Agents interviewed Plaintiff. Id. at 2,
15.
6. Inspection Division Agents became concerned that Plaintiff may have lacked candor when
questioned about his role in the disclosure to the Wall Street Journal. Id. at 1, 21.
7. In August 2017, the Inspection Division referred the investigation to the Department of
Justice’s Office of the Inspector General (“OIG”). Id. at 1, 21.
8. The OIG interviewed Plaintiff, under oath, on two separate occasions. OIG Rpt. at 2, 18,
24.
9. In February 2018, the OIG issued a report entitled, “A Report of Investigation of Certain
Allegations Relating to Former FBI Deputy Director Andrew McCabe,” Feb. 2018,
10. The OIG Report was released publicly on April 13, 2018. See
https://oig.justice.gov/reports/all.htm.
11. The OIG Report concluded that Plaintiff had lacked candor on four occasions, in violation
of FBI rules: once when speaking with then-FBI Director James Comey on October 31,
2016; once while being questioned, under oath, by Inspection Division Agents on May 9,
2017; and twice while being questioned, under oath, by OIG on July 28, 2017 and
November 29, 2017. OIG Rpt. at 2, 22, 27, 29, 31, 35.
12. The OIG also concluded that Plaintiff authorized the disclosure of information to the Wall
Street Journal in violation of the FBI’s and the Department of Justice’s media policy. Id.
at 2, 32, 35.
2
13. Before finalizing its report, the OIG shared a draft with Plaintiff and his counsel. Oral
Resp. Tr. at 165 ln. 6-8.
14. Plaintiff, through counsel, submitted a written response to the OIG Report. See OIG Rpt.
at 23 n.8.
15. The OIG responded to arguments offered by Plaintiff in his response. See, e.g., id. at 23
n.8, 25 n.10, and 26 n.11.
16. The OIG “issu[ed] [its] report to the FBI for such action as it deem[ed] appropriate.” OIG
Rpt. 2, 35.
17. The then-career head of the FBI Office of Professional Responsibility, Assistant Director
Candice Will, 1 reviewed the OIG Report on behalf of the FBI. Letter from Will to Andrew
McCabe (“FBI Rec.”) at 15 (March 7, 2018) (attached as Ex. 1).
18. Assistant Director Will determined that it was not clear whether Plaintiff was under oath
when he spoke with the Inspection Division Agents, but otherwise agreed with the OIG’s
findings that Plaintiff had lacked candor under oath and not under oath and had improperly
disclosed the existence of an FBI Investigation. FBI Rec. at 1, 12-14.When considering an
appropriate penalty for Plaintiff’s conduct, Assistant Director Will explained that she took
several factors into account, including consistency with FBI precedent, the FBI’s
guidelines for punishment, and aggravating and mitigating circumstances. Id. at 14-15.
19. As Assistant Director Will noted, dismissal is the FBI’s standard penalty for lacking candor
under oath. Id. at 14.
1
See https://archives.fbi.gov/archives/news/pressrel/press-releases/fbi-director-names-candice-
m.-will-as-assistant-director-for-office-of-professional-responsibility.
3
20. Ultimately, Assistant Director Will recommended that Plaintiff be “dismissed from the
rolls of the FBI.” Id. at 15.
21. In making her recommendation, Assistant Director Will stated, in part, as follows: “I find
that dismissal is appropriate because all FBI employees know that lacking candor under
oath results in dismissal and that our integrity is our brand. Without it, we are nothing. As
the Deputy Director, you held the second-highest position in the FBI and are expected to
comport yourself with the utmost integrity. Despite this, you repeatedly lacked candor
with the Director of the FBI, the OIG, and the FBI's Inspection Division.” Id.
22. After her review, Assistant Director Will informed Plaintiff via letter, on March 7, 2018,
of her conclusions and recommendation that he be removed from the FBI. Id. at 1.
23. The report of investigation accompanying the recommendation letter states that Andrew
McCabe is an “ES-0 Deputy Director.” OPR, Report of Investigation at 1 (Mar. 6, 2018)
(attached as Ex. 1).
24. DOJ Order 1202 was signed by then-Attorney General Eric Holder. DOJ Order 1202, at 1
(Nov. 26, 2013) (attached to Exhibit 4, Letter from Schools to McCabe).
25. DOJ Order 1202 states that the Deputy Director of the FBI can be removed only by the
Attorney General. Id. at 14 (specifying that individuals in “[k]ey SES [p]ositions” can be
removed only by the Attorney General, and defining key positions to include “[a]ll career
SES officials who are deputy Component Heads in Components with a single deputy
position”); see About FBI, Leadership & Structure, Director Christopher Wray,
https://www.fbi.gov/about/leadership-and-structure (listing a single Deputy Director
position for FBI).
4
26. Assistant Director Will forwarded her 15-page recommendation (along with the 17-page
report of investigation) to the Office of the Deputy Attorney General. Compl., Ex. A.
27. Associate Deputy Attorney General (ADAG) Scott Schools was then the highest ranking
career official in the Department of Justice. See Statement, Department of Justice, Office
of Public Affairs, Attorney General Jeff Sessions Announces Bradley Weinsheimer to
Replace Departing Associate Deputy Attorney General Scott Schools, July 3, 2018,
https://www.justice.gov/opa/pr/attorney-general-jeff-sessions-announces-bradley-
weinsheimer-replace-departing-associate.
28. On March 8, 2018, after receiving Assistant Director Will’s recommendation, ADAG
Schools sent Plaintiff a letter informing him of the procedures that the Department would
follow in reviewing the matter and of the rights he possessed related to this review. Letter
from Schools to McCabe (“Schools Letter”) (Mar. 8, 2018) (Attached as Ex. 4).
29. Attached to ADAG Schools’ letter was a copy of DOJ Order 1202. DOJ Order 1202, at
14.
30. ADAG Schools’ letter also stated that any decision to remove Mr. McCabe would be
effective no earlier than March 16, 2018. Schools Letter at 1.
31. The Department of Justice furnished Mr. McCabe with a week to submit oral and written
responses to the notice of proposed removal. 2 Id.
32. On March 15, 2018, Plaintiff and two of his attorneys provided Plaintiff’s oral reply to
ADAG Schools and another career Department of Justice attorney. Mar. 15, 2018 Tr. of
Hearing in the Matter of Andrew McCabe (“Oral Resp. Tr.”) (attached as Ex. 3).
2
The letter from ADAG Schools stated that Plaintiff’s written response was due March 15, 2018,
but that deadline was extended until noon on March 16, 2018. Compl. ¶ 122.
5
33. The hearing lasted more than four hours. See id. at 1, 201.
34. During the hearing, Plaintiff answered questions from his lawyers and from ADAG
Schools, and his lawyers presented argument. See generally Oral Resp. Tr.
35. At the end of the hearing, ADAG Schools told Plaintiffs’ counsel that the Attorney General
would make the decision of whether or not to remove Plaintiff. Id. at 198–200.
36. At the hearing, Plaintiff’s counsel stated, “if it’s a suspension for more than 30 days or a
termination that goes to him.” Oral Resp. Tr. at 199:13–14.
37. The reference to “him” at line 14 of page 199 of the Oral Response Transcript is a reference
to the Attorney General. Oral Resp. Tr. at 198–99.
38. The next day, Plaintiff, through counsel, submitted an eleven-page, single-spaced letter
responding to the notice of proposed removal. Letter from Bromwich to Schools (“Resp.
Letter”) (March 16, 2018) (attached as Ex. 5).
39. The letter submitted by Plaintiff’s counsel refers to Plaintiff as the Deputy Director of the
FBI. Id. at 1.
40. In neither his oral nor written response did Plaintiff raise concerns with the Attorney
General’s involvement in the decision-making process. See Oral Resp. Tr.; Response
Letter.
41. ADAG Schools issued a written recommendation to the Attorney General. Memo. from
ADAG Schools to the Attorney General (“ADAG Rec.”), at 1–6 (Mar. 16, 2018) (attached
as Ex. 6).
42. ADAG Schools’ recommendation states that its purpose is to “provide a recommendation
regarding the proposed removal of FBI Deputy Director Andrew G. McCabe.” Id. at 1.
6
43. In his written recommendation, ADAG Schools recommended that the Attorney General
“sustain the charge[s] that Mr. McCabe [(i)] lacked candor” under oath in his interview
with OIG, (ii) lacked candor not under oath in his interview with Inspection Division
Agents, and (ii) authorized the disclosure of an on-going FBI investigation in contravention
of FBI policy. Id. at 1–6.
44. ADAG Schools concluded that the OIG’s finding that Plaintiff lacked candor in his
conversation with former FBI Director James Comey was not supported by a
preponderance of the evidence. Id. at 5.
45. ADAG Schools recommended that Plaintiff be “dismissed from the rolls of the FBI.” Id.
at 6.
46. ADAG Schools based his dismissal recommendation, in part, on the fact that the “standard
penalty for lack of candor under oath is dismissal.” Id.
47. ADAG Schools also stated that “[t]he substantiated findings of lack of candor under oath
are compounded by the finding of lack of candor not under oath, and the unauthorized
disclosure finding.” Id.
48. ADAG Schools noted, “as Ms. Will [had] observed,” that Mr. McCabe “was the second
highest-ranking official in the FBI, and he [wa]s expected to handle himself with utmost
integrity.” Id.
49. On March 16, 2018, the Attorney General adopted the recommendation of ADAG Schools
that Mr. McCabe be removed. Compl. ¶ 38; ADAG Rec. at 6.
50. The Attorney General wrote: “For the reasons stated in the foregoing recommendation, I
have decided that Andrew G. McCabe should be removed from the Federal Bureau of
Investigation and from the civil service.” Id.
7
51. Mr. McCabe’s removal was effective on March 16, 2018. Id.
JOSEPH H. HUNT
CHRISTOPHER R. HALL

JUSTIN M. SANDBERG
KYLA M. SNOW (Attorney Bar No. 96662)
Trial Attorney
Branch
1100 L Street, NW
Phone: (202) 514-5838
Fax: (202) 616-8460
8
Case 1:19-cv-02399-RDM Document 23-1 Filed 11/01/19 Page 1 of 1

)
)
Plaintiff, )
v. )
)
al., )
)
Defendants. )
)
)
[PROPOSED] ORDER
The Court, having considered Defendants’ Motion to Dismiss and for Summary
Judgment, hereby GRANTS the motion.
IT IS SO ORDERED, this _________ day of _____________, 2019.
HON. RANDOLPH D. MOSS

United States District Judge
EXHIBIT 1
EXHIBIT 2
TABLE OF CONTENTS
Subject Page
I. GENERAL PROVISIONS
A. POLICY ........................................ 1
B. DEFINITIONS........................................ 2
II. RESPONSIBILITIES AND AUTHORITIES
A. THE ATTORNEY GENERAL............................... 4

B. THE DEPUTY ATTORNEY GENERAL........................ 4
C. THE DIRECTOR OF THE FBI............................ 4
D. THE SES BOARD...................................... 4
E. THE PERFORMANCE REVIEW BOARD(PRB) 4
F. THE ADMINISTRATIVE SERVICES DIVISION.. 4
III. ADMINISTRATION
A. THE SES BOARD 5

B. THE PERFORMANCE REVIEW BOARD . . . 6
IV. STAFFING
A. MERIT PRINCIPLES 7
B. CAREER APPOINTMENTS 7
C. LIMITED TERM/LIMITED EMERGENCY APPOINTMENTS 8
D. REINSTATEMENT 9
V. REMOVAL AND ADVERSE ACTION
A. GENERAL 10
B. ACTIONS TAKEN DURING PROBATIONARY PERIOD 10
C. ACTIONS TAKEN AFTER COMPLETION OF
PROBATIONARY PERIOD 11
D. ACTIONS TAKEN AGAINST
LIMITED TERM/EMERGENCY APPOINTEES 15
E. GUARANTEED PLACEMENT OUTSIDE THE SES 15
F. GUARANTEED ANNUITY 17
VI. PERFORMANCE APPRAISAL
A. GENERAL INFORMATION 18
B. PERFORMANCE APPRAISAL FOR THE SES 28
C. ACTIONS BASED ON LESS THAN FS PERFORMANCE 38

D. ESTABLISHMENT OF DOJ PERFORMANCE REVIEW BOARDS 42
(Revised 11/2004)
VII. PAY FOR THE SENIOR EXECUTIVE SERVICE
A. SALARY LEVELS 26
B. SETTING INDIVIDUAL PAY RATES 26
C. AWARDS 27
D. LIMITATION ON SALARY 29
VIII. EXECUTIVE DEVELOPMENT
A. EXECUTIVE DEVELOPMENT PROGRAM 30

B. SABBATICALS 30
IX. MISCELLANEOUS PROVISIONS
A. TRAVEL EXPENSES 32
B. ANNUAL LEAVE 32
C. LAST MOVE HOME EXPENSES 32
D. FURLOUGHS 32
E. TRAINING 34
F. REPORTS AND EVALUATION 34
G. EXTENSION BEYOND MANDATORY RETIREMENT. . . . . . . 34
H. RECORDS. . . . . . . . . . . . . . . . . . . . . . 34
CHAPTER I. GENERAL PROVISIONS
A. POLICY. Public Law 100-325 authorized the Attorney

General to establish a Senior Executive Service (SES) for
the FBI to include designated managerial and supervisory
positions. It is the policy of the FBI to administer its
SES so as to:
● provide for a compensation system, including salaries,

benefits, and incentives, and for other conditions of
employment, designed to attract and retain highly competent
senior executives;
● ensure that compensation, retention, and tenure are

contingent on executive success which is measured on the basis
of individual and organizational performance (including such
factors as improvements in efficiency, productivity, quality of

work or service; cost efficiency, and timeliness of performance
and success in meeting equal employment opportunity goals);
● assure that senior executives are accountable and

responsible for the effectiveness and productivity of employees
under them;
● recognize exceptional accomplishment;
● enable the head of an agency to reassign senior

executives to best accomplish the agency's mission;
● provide for severance pay, early retirement, and

replacement assistance for senior executives who are removed
from the Senior Executive Service for nondisciplinary reasons;
● protect senior executives from arbitrary or capricious

actions;
● provide for program continuity and policy advocacy in

the management of public programs;
● maintain a merit personnel system free of prohibited

personnel practices;
● ensure accountability for honest, economical, and

efficient Government;
● ensure compliance with all applicable civil service

laws, rules, and regulations, including those related to equal
employment opportunity, political activity, and conflicts of
interest;
● provide for the initial and continuing systematic

development of highly competent senior executives;
● provide for an executive system which is guided by the

public interest and free from improper political interference;
and,
● appoint career executives to fill Senior Executive

Service positions to the extent practicable, consistent with the
effective and efficient implementation of agency policies and
- 2 -
responsibilities.
B. DEFINITIONS. Throughout the remainder of this policy

statement, all references to "SES" indicate the FBI SES,
unless otherwise specified. The provisions of this policy
do not supersede the jurisdiction of the Office of
Attorney Personnel Management, Department of Justice
(DOJ), in matters pertaining to those employees serving in
FBI SES non-Agent attorney positions, unless a delegation
of authority otherwise exists.
1. SES Position is any managerial or supervisory

position classified above GS 15 of the General
Schedule or in level IV or V of the Executive
Schedule, or an equivalent position, which is not
required to be filled by Presidential appointment
with the advice and consent of the Senate and which
involves:
a. Directing the work of an organizational unit;
b. Being held accountable for the success of one or

more specific programs or projects;
c. Monitoring progress toward organizational goals

and making appropriate adjustments to such goals;
d. Supervising the work of employees other than

personal assistants; or
e. Otherwise exercising important policy making,

policy determining, or other executive functions.
2. Senior Executive is a member of the SES.
3. Key Executive is the term used throughout this policy

to refer to individuals who occupy:
a. the positions of Executive Assistant Director,

Assistant Director, Assistant Director in Charge, or
General Counsel, and
b. positions which report to the Director,
- 3 -
4. A Limited Emergency Appointment may be made to meet a

bona fide, unanticipated, urgent need. The
appointment may not exceed 18 consecutive months and
is nonrenewable.
5. A Limited Term Appointment may be made to a position

the duties of which will expire at the end of a
specified period or to a position that special
circumstances require to be filled on a rotating
basis. The appointment may not exceed five years and
is nonrenewable.
6. SES Limited Appointment Allocation. Limited term and

limited emergency appointments are included in the
total FBI SES allocation. The total number of
limited emergency and limited term appointees may not
exceed 5% of the FBI total allocation.
- 4 -
CHAPTER II. RESPONSIBILITIES AND AUTHORITIES
A. THE ATTORNEY GENERAL has final authority over the SES in

that he/she may issue governing regulations and shall from
time to time issue guidance to the Director regarding
aspects of the SES. The Attorney General is solely
responsible for nominating FBI executives for Presidential
Rank Award recognition.
B. THE DEPUTY ATTORNEY GENERAL provides overall supervision

and direction to the FBI SES and has final approval
authority for many personnel matters involving executives,
e.g., salary adjustment and bonus decisions.
C. THE DIRECTOR OF THE FBI is authorized by the Deputy

Attorney General to manage the FBI SES in accordance with
5 U.S.C. §3151, to include taking final action in matters
pertaining to employment, direction, and general
administration of personnel, including appointment,
assignment, training, promotion, demotion, compensation,
leave, classification, and separation. [The Attorney
General and Deputy Attorney General reserve final approval
authority for matters pertaining to key executives and key
executive positions.]
D. THE SES BOARD consists of high ranking executives selected

by the Director to provide recommendations and/or final
decisions in a vast array of matters impacting the use of
executive resources. The SES Board shall, as appropriate,
establish sundry other boards and committees as necessary
to facilitate the administration and operation of the SES.
E. THE PERFORMANCE REVIEW BOARD (PRB) evaluates the initial

appraisal of senior executives for compliance and
sufficiency. In the event an employee responds to one or
more negative ratings, the PRB will review the response
and addend a recommendation to sustain or adjust the
appraisal for consideration of the final approving
official. The PRB may also evaluate bonus recommendations
based on the content of the appraisal.
F. THE ADMINISTRATIVE SERVICES DIVISION (ASD) provides policy

support to the SES Board and furnishes an executive
- 5 -
secretary to the PRB and all subsidiary boards. ASD works

closely with the Justice Management Division, DOJ to
interpret and implement laws and regulations impacting the
FBI SES.
- 6 -
CHAPTER III. ADMINISTRATION
The SES Board and the PRB provide recommendations on

personnel management matters required for the continuous
operation of the SES, e.g., selection, promotion, evaluation of
performance, recommendation for recognition, succession
planning, etc. Additional boards and committees, such as those
necessary for the initial rating of the Special Agents in Charge
of the various field offices, will be formed and staffed as
necessary to ensure the efficient accomplishment of internal
goals and objectives.
A. THE SES BOARD.
1. Membership. The SES Board will consist of high

ranking executives selected by the Director. Members
will be recused from voting on matters involving
themselves or their prior decisions and as otherwise
required by the Board Chair based on conflicts or
other appropriate bases.
2. Functions. Under delegation of authority from the

Director, the SES Board provides management oversight
and is responsible for conducting the following
functions:
a. Executive personnel planning, including

determination of numbers of SES positions needed,
development of executive staffing plans, forecasting
of executive requirements, determination of executive
development program objectives.
b. Preparing recommendations regarding the staffing

of executive positions, including selections,
promotions, reassignments and details.
c. Executive development, including selection of

candidates for programs to develop executive
qualifications, the planning and conduct of such
programs for the continuing development of senior
executives, and evaluation of performance during
developmental assignments.
- 7 -
d. Position management, including proper use of SES

and other positions, and redistribution of functions
to maximize the effectiveness of agency executives.
e. Pay management, through recommendations to the

Director on staffing, promotion, and demotion
matters, as well as recruitment, relocation and
retention pay incentives available to the SES.
f. Development of policy on discipline and removal

of executives for cause.
g. Development of policy on removal from the SES

based on performance and alternatives to removal for
use in appropriate cases.
h. Development of policy on performance appraisal

and recognition.
i. Incorporation of DOJ and FBI equal employment

opportunity policies into executive personnel plans
and activities.
j. Establishment of boards and committees to

facilitate the administration and operation of the
SES, to include review and evaluation of the reports
and recommendations from such boards/committees,
assuring that DOJ requirements are met where
applicable.
k. Such other matters as are approved, implicitly or

explicitly, by the Director and not prohibited by DOJ
or other policy or law.
B. THE PERFORMANCE REVIEW BOARD (PRB).
DOJ guidance will be provided on an annual basis to

establish PRBs in each component. Please see chapter VI
for further information.
- 8 -
Chapter IV. STAFFING
A. MERIT PRINCIPLES. The SES Board will ensure that merit

principles, executive qualifications, selection criteria,
and equal employment opportunity objectives are considered
in selection matters under their purview. The SES Board
will review the executive qualifications of each candidate
meeting selection guidelines, including all current FBI
SES members and qualified employees outside the FBI SES
population.
B. CAREER APPOINTMENTS to the SES are normally made from

within the career ranks of the FBI, to include both
Special Agent and non-Agent personnel, considering
demonstrated executive experiences and, where relevant,
successful participation in the Career Development
Program. Sufficient flexibility exists to allow for the
appointment of non-FBI career employees whose special or
unique qualifications indicate a likelihood of executive
success.
1. Probationary Period. An individual who receives an

SES career appointment must serve a 1-year
probationary period.
2. Reassignment. SES members may be reassigned to meet

mission needs, better use or enhance their executive
qualifications, or provide developmental
opportunities.
a. Authority: The Director may reassign SES members

from one position to another. The Director, based on
recommendation from the SES Board, determines that
the SES member being proposed for reassignment meets the
technical qualification requirements of the position
to which being reassigned. When reassigning key
executives,, the Director will seek concurrence from
the Deputy Attorney General prior to the action being
made final.
b. Notice Requirements: The SES member must be

provided with written notice in advance of any
reassignment/transfer.
- 9 -
(1) Non-geographic reassignments: The

appointee must receive a written notice at least
15 days in advance of the effective date of the
reassignment. An appropriate management
official will generally consult with the
appointee before the written notice is
delivered.
(2) Geographic reassignments (i.e.,

to another commuting area): Management will
consult with and consider an executive’s input
prior to making a final reassignment decision.
Following a decision, the executive is given a
written notice at least 60 days in advance of
the effective date of any reassignment. This
written notice must contain the reasons for the
reassignment. The advance written notice may be
waived with the written consent of the executive
being reassigned.
(3) Voluntary reassignment: An SES member

may request a reassignment if he/she meets all
technical qualification requirements. Such a
request must be in writing signed by the SES
member and the documentation should be
preserved. The written request will preclude
necessity for the advance notice described
above.
C. LIMITED TERM/LIMITED EMERGENCY APPOINTMENTS to SES are

made in consideration of demonstrated special
qualifications and/or experience which uniquely qualify
the individual to serve either on an emergency basis for a
specified, limited period, or in a position the duties of
which will expire within a specified period of time or
which must be filled on a rotating basis. The Director
must approve all limited appointments and seek the
concurrence of the Deputy Attorney General where the
appointment is to a key executive position.
Reassignment:
- 10 -
a. A limited term appointee may be reassigned

to another SES position provided that the duties of
such a position terminate within five years or less.
Under no circumstances may a limited term appointee
serve in one or more such positions in the FBI for
more than five years.
b. A limited emergency appointee may be

reassigned to another SES position in the FBI which
is established to meet a bona fide, unanticipated,
urgent need, except that the limited emergency
appointee may not serve in one or more such positions
in the FBI for more than 18 consecutive months.
c. Neither a limited term nor a limited

emergency appointee may be appointed to or continue
to hold a position under such an appointment if
within the preceding 72 months the individual has
served more than 60 months in the aggregate under any
combination of such appointments.
D. REINSTATEMENT of a former FBI SES career appointee to any

SES position for which the appointee is qualified may
occur if the following conditions are met.
1. The appointee has successfully completed, or was not

required to complete, a one-year SES probationary
period; and
2. The appointee left SES for reasons other than

misconduct, neglect of duty, malfeasance, failure to
accept a directed reassignment or to accompany a
position in a transfer of function, or less than
fully successful executive performance; or
3. The employee was appointed by the President to any

civil service position outside SES, left that
position for reasons other than misconduct, neglect
of duty, malfeasance, and applies for reinstatement
within 90 days after separation from the Presidential
appointment; and
4. The Deputy Attorney General must approve

reinstatement to a key executive position.
- 11 -
Reemployed annuitants in the SES serve at the

discretion of the Director. Final administrative action
regarding reemployed annuitants in key executive positions
is subject to review by the Deputy Attorney General.
- 12 -
CHAPTER V. REMOVAL AND ADVERSE ACTION
A. GENERAL. A career appointee may be removed from the SES

for a variety of reasons, including less than fully
successful performance, misconduct, conditions arising
before appointment, and reduction in force (RIF). Final
approval for adverse actions involving key executives will
be at the discretion of the Deputy Attorney General. The
Director is the final approval authority for all other FBI
senior executives.
Unless a career appointee is removed for less than Fully

Successful executive performance pursuant to the
appraisal process described in Chapter VI, he/she may not
be involuntarily removed from the SES within 120 days
after the appointment of a new Director. A removal action
based on performance is not subject to the 120-day
moratorium if the action is based on a final rating given
before the appointment of the Director. Procedural
entitlements and placement of the appointee are dependent
upon the basis for the removal action.
B. ACTIONS TAKEN DURING PROBATIONARY PERIOD.
1. Performance-based removal. The removal for

unsatisfactory performance of a career appointee who
has not completed the probationary period need not be
based on a final rating of record. Regardless of
whether a rating has been issued, a probationary
executive being removed for performance must be
notified in writing of the effective date of the
action. This notice must, at a minimum:
a. State the agency's conclusions as to the

inadequacies of the executive's performance;
b. State whether the appointee has placement rights

and, if so, identify the position to which he/she
will be assigned (see paragraph E of this chapter
regarding placement rights); and
c. Show the effective date of the action.
- 13 -
2. Adverse action. An employee being removed or

suspended for misconduct, neglect of duty,
malfeasance, or failure to accept a directed
reassignment or to accompany a position in a transfer
of function, must be notified in writing before the
effective date of the action. This notice must, at a
minimum:
a. State the basis for the action (including the

act(s) of misconduct, neglect of duty, or malfeasance
if those factors are involved); and
b. Show the effective date of the action.
However, if the employee was a preference

eligible employee immediately prior to his/her
appointment, the provisions in 5 CFR Part 752,
Subpart F apply.
3. Removal based on conditions arising before

appointment. When action to remove is based in whole
or in part on conditions arising before the
appointment, and the probationary employee was not a
preference eligible employee immediately before
appointment, the following procedures apply:
a. The agency shall give the employee an advance

written notice stating the specific reasons for the
proposed removal;
b. The employee must be provided a minimum of seven

days to reply; and
c. A written decision, showing the reasons for the

action and the effective date, must be given to the
employee at or before the time the action will be
made effective.
However, if the employee was a preference

eligible employee immediately prior to his/her
appointment, the provisions in 5 CFR Part 752,
Subpart F apply.
4. Removal based on RIF. The same procedures apply to
- 14 -
probationary and non-probationary employees during a

RIF. See C.3., below.
C. ACTIONS TAKEN AFTER COMPLETION OF PROBATIONARY PERIOD.
1. Removal for Performance. A career appointee may be

removed from SES and assigned to a GS 15 position
within the FBI at any time for less than fully
successful executive performance based on a minimum
of 120 days in the SES position and in accordance
with the provisions of Chapter VI. A career
appointee who has completed the one year probationary
period, but who is removed from the SES for executive
performance, is guaranteed placement in a GS 15
position (see paragraph E of this chapter). Any
career appointee being removed for performance
reasons will receive a written notice at least 30
calendar days before the effective date of removal
which will include:
a. The reason for the removal, including reference

to the final rating(s) upon which the decision was
based;
b. The appointee's right to be placed in a position

outside the SES, and information regarding the
position to which the employee will be reassigned, if
such decision has been made. If that decision has
not been made, the employee may be advised of the
proposed assignment in a supplementary notice issued
at least 10 days in advance of the effective date of
the action;
c. The appointee's right, if any, to a discontinued

service retirement; and
d. The appointee's right to request a

reconsideration of the proposed action by the
Director. Such a request must be made at least 15
days prior to the effective date of the action. For
key executives, the response to a proposed action
will be considered by the Director and ultimately the
Deputy Attorney General who serves as the final
approval authority. For all other executives the
- 15 -
Director will serve as the final approval authority.

A removal for performance is not appealable to the
Merit Systems Protection Board.
2. Adverse Actions (Disciplinary Removal/Suspension).

Action may be taken against a member of the SES for
misconduct, neglect of duty, malfeasance, or failure
to accept a directed reassignment or to accompany a
position in a transfer of function. This action may
include removal from the civil service or suspension
for more than 14 days. Suspension in the SES may
include indefinite suspension where additional
investigation is necessary to resolve serious
disciplinary proceedings such as allegations of
criminal activity, revocation of security clearance,
or disruptive behavior which may have underlying
medical causes.
The Office of Professional Responsibility is the

entity within the FBI charged with processing adverse
actions for review by the Director.
a. Entitlements. Any career SES employee who has

completed the one-year probationary period, and any
probationary or limited term/limited emergency
appointee who was a preference eligible employee
immediately prior to appointment to the SES, against
whom such adverse action is taken, is entitled to:
(1) At least 30 days advance written notice

stating specific reasons for proposed actions.
However, if there is reasonable cause to believe
the employee has committed a crime for which a
sentence of imprisonment can be imposed, the
advance notice may be curtailed to as little as
seven days.
(2) A reasonable time, but not less than seven

days, to answer orally and in writing and to
furnish affidavits and other documentary
evidence in support of the answer;
(3) Be represented by an attorney or other

representative; and
- 16 -
(4) A written decision of final action and

specific reasons therefor at the earliest
practicable date.
(4) If the employee wishes the FBI to consider

any medical condition that may have affected the
basis for the adverse action, he/she will be
permitted to furnish medical documentation of
the condition.
b. Special circumstances. If during the required 30

day advance notice period the employee's presence in
the work place may pose a threat to the employee or
others, result in loss of or damage to Government
property, or otherwise jeopardize legitimate
Government business, the following actions may be
taken:
(1) The employee may be assigned to duties

where he/she is no longer a threat to safety,
the FBI's mission or Government property;
(2) The employee may be placed on leave with

his/her consent;
(3) The employee may be carried on appropriate

leave if he/she is voluntarily absent for
reasons not originating with the FBI;
(4) The notice period may be curtailed, and the

employee placed in a nonduty status with pay,
where the FBI has reasonable cause to believe
that the employee has committed a crime for
which a sentence of imprisonment may be imposed;
or
(5) If none of the above alternatives are

available, the employee may be placed in a paid
nonduty status during all or part of the notice
period.
c. Documentation. The notice of proposed adverse

action will inform the employee of his/her right to
- 17 -
review the material that is relied on to support the

reasons for the action(s). The FBI will not use
material that cannot be disclosed to that employee,
his/her representative, or designated physician to
support the reasons provided in the notice.
d. Determination. In arriving at its written

decision, the FBI will consider only the reasons
specified in the notice of proposed action and will
consider the reply of the employee or his/her
representative as well as any medical documentation
which has been submitted. Written notice of the
decision will be delivered at or before the time the
adverse action will be effective. The Director has
final approval authority regarding removals and
adverse actions for the majority of SES employees,
excepting only those who are key executives for which
final approval authority resides with the Deputy
Attorney General.
3. Removal as a result of RIF. A RIF can take place in

the SES based upon elimination or modification of
positions due to a reorganization, lack of funds or
curtailment of work, or other factors. Retention in
the SES will be based upon procedures consistent with
Title 5 U.S.C. §3595(a).
An employee who is removed from the SES as the

result of a RIF will be reduced to a GS 15 and placed
in a non-SES position within the FBI. The reduced
employee will be entitled to guaranteed placement in
accordance with paragraph E of this chapter, if he/she
has completed any required probationary period. After
receiving the specific notice of a RIF decision, an
employee may appeal that decision in writing to the
Director.
D. ACTIONS TAKEN AGAINST LIMITED TERM/EMERGENCY APPOINTEES.
1. Limited term and limited emergency appointees may be

removed or suspended from the SES at any time at the
discretion of the Director, or Deputy Attorney
General for action(s) involving key executives. All
- 18 -
such appointees must be given at least a one day

written notice and have no rights to an
administrative hearing or appeal. Such employees do
not have reinstatement or pay retention rights. The
notice provided shall, at a minimum,
a. State the basis for the action (including

the act(s) of misconduct, neglect of duty, or
malfeasance if those factors are involved); and
b. Show the effective date of the action.
2. Removal for disciplinary reasons of limited term and

emergency appointees who held preference eligible
status immediately prior to entering the SES and
completed at least one year of continuous service in
the FBI must be in accordance with the provisions in
5 CFR Part 752, Subpart F.
E. GUARANTEED PLACEMENT OUTSIDE THE SES.
1. Coverage. The following information applies to

career appointees, other than reemployed annuitants,
who are removed from the SES for any of the following
conditions:
a. Removal during the probationary period for other

than misconduct, neglect of duty, malfeasance, or
other disciplinary reasons;
b. Removal for less than Fully Successful

performance if the appointee has completed or was not
required to serve an SES probationary period; or
c. Removal as a result of a RIF if the appointee has

completed or was not required to serve a probationary
period.
2. Placement. Any position to which a career appointee

under 1.b.c.d. is placed must be a continuing
position at no less than GS 15 for which he/she meets
qualifications requirements. No career appointee may
be placed in a non-SES position which would cause the
- 19 -
separation or reduction in grade of any other

employee.
An employee who has not completed the FBI SES
probationary period is entitled to be placed in a
position of tenure equivalent to the FBI appointment
held at the time of entry into the SES, unless the
FBI does not have a position of equivalent tenure for
which the appointee meets the qualifications
requirements or if the appointee is willing to accept
a position having different tenure.
Employees who do not complete the FBI SES

probationary period and did not hold an FBI career
appointment for which they completed a probationary
period prior to entering the FBI SES have no
placement rights.
3. Pay. Any career SES appointee placed in a GS 15

position, as a result of other than an adverse
action, is entitled to receive basic pay at the
highest rate of:
a. The basic pay rate in effect for the non-SES

position in which placed;
b. The basic payable salary in effect for the

position held by the appointee before entering SES;
or
c. The basic pay rate in effect for the SES career

appointee immediately before placement in the non-SES
civil service position.
[Note: While basic pay is preserved, other

components of salary, to include locality
and availability pay, will be limited by the pay caps
applicable for the General Schedule.]
SES appointees subject to guaranteed placement

prior to completing the FBI SES probationary period
will receive the highest previous rate for the
position to which they are returned.
4. Disciplinary removal. An appointee removed for
- 20 -
disciplinary reasons has no entitlement to placement

in a position outside the SES, and may not be moved
directly from an SES position to a non-SES position.
Following the removal action, however, a separate
action may be taken to appoint the individual to a
position outside the SES for which he/she is
eligible. In such case, all requirements, including
suitability requirements, pertinent to the new
appointment must be met.
F. GUARANTEED ANNUITY. A member of the SES who is removed

from SES for less than fully successful executive
performance may request a discontinued service annuity if
the employee has completed 25 years of service or is at
least 50 years of age and has completed 20 years of
service.
- 21 -
CHAPTER VI. PERFORMANCE APPRAISAL
This chapter incorporates the DOJ Performance Management

System Plan covering all senior executives.
DEPARTMENT OF JUSTICE
PERFORMANCE MANAGEMENT SYSTEM PLAN
FOR SENIOR EXECUTIVE SERVICE EMPLOYEES
SECTION 1
GENERAL INFORMATION
1. PURPOSE. This framework establishes the Department of

Justice (DOJ or Department) Performance Management System
(PMS) for Senior Executive Service (SES) employees1
throughout the Department and also includes the Federal
Bureau of Investigation and the Drug Enforcement
Administration.
2. SCOPE. This model plan provides general guidelines for

component heads to use in developing performance management
plans for their organizations. Component heads may adopt
this plan or develop their own to tailor their PMS and
approach for managing SES performance to fit their unique
and changing mission, operational needs, and organizational
climates. Component performance plans must be consistent
with law and regulation as listed in paragraph 4 of this
plan.
3. POLICY. The Department recognizes the importance of

integrating its performance appraisal, pay, and incentive
award programs into the management of its human resources
to promote efficient and effective attainment of its
mission, program objectives, and strategic planning
initiatives. The Department's PMS for SES members is a
management tool to motivate high levels of achievement, and
for holding senior executives accountable for their
individual and organizational performance by:
a. Expecting excellence in senior executive performance;
SES employees are those covered by 5 U.S.C. chapter 31,

subchapter II. - 22 -
b. Linking performance management with the results-

oriented goals of the Government Performance and
Results Act (GPRA) of 1993;
c. Setting and communicating individual and
organizational goals and expectations;
d. Systematically appraising senior executive performance

using measures that balance organizational results
with customer, employee, or other perspectives; and
e. Using performance results as a basis for pay, awards,

development, retention, removal, and other personnel
decisions.
4. AUTHORITIES. The PMS is established in accordance with the

following authorities:
a. Performance Appraisal - 5 U.S.C. chapter 43, subchapter

II (Performance Appraisal in the Senior Executive Service);
5 CFR Part 430, Subpart C (Managing Senior Executive
Performance).
b. Superior Accomplishment Awards - 5 U.S.C. chapter 45

(Incentive Awards); 5 CFR Part 451, Subpart A (Agency
Awards).
c. Records of Employee Performance - 5 CFR Part 293,

Subpart D (Employee Performance File System Records).
5. RESPONSIBILITIES.
a. The Attorney General (AG) responsibilities:
(1) Managing the SES and assessing the performance

for individual SES members. Setting and
adjusting SES rates of pay for individual senior
executives. The AG has delegated certain
responsibilities as appropriate.
b. The Deputy Attorney General (DAG) responsibilities:
(1) Directs that the annual assessment of the

Department’s performance be conducted, issues
performance evaluation guidelines, certifies that
the results of the appraisal process make
meaningful distinctions, and assures pay
adjustments and levels of pay accurately reflect

and recognize performance and/or contribution to
the Department’s performance.
(2) Approving performance appraisals for noncareer

and key career executives except for SES members
in the Office of the Inspector General (OIG);
(3) Approving Superior Accomplishment Awards (Special

Act or Service) for all noncareer and career
executives except for SES members in the OIG; and
(4) Approving bonus recommendations for all career

executives except for SES members in the OIG.
(5) Serving as Chair of the Department’s executive

Performance Review Board (PRB) established under
5 CFR 430.310.
b. Assistant Attorney General for Administration (AAG/A)

responsibilities:
(1) Providing assessment of the component’s or

Department’s performance overall as well as each
of its major program and functional areas, such
as reports of the Department’s Government
Performance and Results Act (GPRA) goals and
other program performance measures and
indicators, and evaluation measures and
indicators, and evaluation guidelines based, in
part, upon those assessments to senior employee
rating and reviewing officials and PRB members.
(6) Certifying that (1)the senior employee appraisal

process makes meaningful distinctions based on
relative performance; (2)the results of that
process take into account as appropriate the
Department’s assessment of its performance
against program performance measures; and (3)pay
adjustments, cash awards, and levels of pay
accurately reflect and recognize both individual
and organizational performance.
c. Authorized Department Official, (i.e., Component Head)

with the exception of the Office of the Inspector General
(OIG) responsibilities:
(1) Setting and adjusting SES rates of pay for individual

senior executives within the scope of the
Department’s Delegation of Authority.
(2) Appointing SES members within their respective
organizations to serve on PRBs;
(3) Approving performance appraisals for all career SES

members within their respective organizations
except for certain key career executives2; and
(3) Approving performance based reassignments for all

career SES members within their respective
organizations except for certain key career executives.
d. The Inspector General responsibilities:
(1) Appointing SES members to serve on the OIG PRB;
(2) Approving performance appraisals for all career

executives in the OIG;
(3) Approving Superior Accomplishment Awards (Special

Act or Service) for all career executives in the
OIG; and
(4) Approving bonus recommendations for all career

executives in the OIG.
6. DEFINITIONS
Key career executive positions at the FBI include:
a. the positions of Executive Assistant Director, Assistant

Director, Assistant Director in Charge, or General Counsel,
and
b. positions which report to the Director.

a. Annual Summary Rating. The overall rating level that

an appointing authority assigns at the end of the appraisal
period after considering a Performance Review Board's
recommendations. This is the official rating.
b. Appointing Authority. The Attorney General,

Department component heads, or other Department official with
authority to make appointments in the SES.
c. Authorized Department Official. The Attorney General

or an official who is authorized to act for the Attorney
General in the matter concerned. The Department’s Inspector
General is the Authorized Department Official for senior
executive positions in the Office of the Inspector General
consistent with the requirements in section 3(a) of the
Inspector General Act of 1978.
d. Award or Superior Accomplishment Award. A monetary

or non-monetary award for a special contribution resulting in
tangible benefits or savings and/or intangible benefits to the
government.
e. Balanced Measures. An approach to performance

measurement that balances organizational results with the
perspectives of distinct groups, including customers and
employees.
f. Component. An Office, Board, Division, or Bureau,

i.e., the first major subdivision of the Department that is
separately organized and clearly distinguished from other
components in work functions and operation.
g. Component Head. The official who directs the

administration and operations of each Office, Board, Division,
and Bureau of the Department of Justice. However, for the
purposes of this plan, the component head for the United States
Attorneys and United States Trustees shall be the Director of
the Executive Office for United States Attorneys and the
Director of the Executive Office for United States Trustees,
respectively.
h. Critical Element. A key component of an executive's

work consisting of one or more duties and responsibilities that
contributes to organizational goals and results and is so
important that unsatisfactory performance of the element would
make the executive's overall job performance unsatisfactory.
i. Higher Level Review Official. The official who is

responsible for providing a higher level review of an SES
member’s initial appraisal. (Typically the second level
supervisor) Note: The reviewer must hold a higher level
position than the rating official, but not necessarily be in
the same organization.
j. Intangible Benefits. Benefits to the Government

which cannot be measured in terms of dollar savings.
k. Initial Summary Rating. The overall rating level the

supervisor derives from appraising the senior executive's
performance during the appraisal period and forwards to the
Performance Review Board.
l. Interim Rating. An interim rating is issued to

appraise employee performance during details, or during
assignment to any Department PMS position in which the employee
served for the minimum appraisal period during the annual
appraisal cycle. The weight given to interim ratings in
deriving the employee's annual summary rating should be
proportionate to their share of the appraisal cycle.
m. Minimum Appraisal Period. The minimum amount of time

in which an employee must have served in a position under
written performance elements and requirements in order for an
appraisal to be rendered concerning such performance. The
Department's minimum appraisal period is 90 days. Component
heads may establish longer minimum appraisal periods.
n. Nonmonetary Award. A medal, certificate, plaque,

citation, badge, or other similar item that is given to honor
an individual.
o. Performance. The accomplishment of the work

described in the senior executive's performance plan.
p. Performance Appraisal. The review and evaluation of

a senior executive's performance against performance elements
and requirements.
q. Performance Award. Performance awards, commonly

called “bonuses,” recognize and reward excellence of career SES
appointees or a former career SES appointee who has elected to
retain bonus eligibility under 5 U.S.C. § 3392(c). Specific
due dates and instructions for recommending executives for
bonuses will be issued by the Deputy Attorney General for each
appraisal cycle.
r. Performance Management System. The framework of

policies and practices established under 5 U.S.C. chapter 43,
subchapter II and 5 CFR Part 430, Subpart C, for planning,
monitoring, developing, evaluating, and rewarding both
individual and organizational performance and for using
resulting performance information in making personnel
decisions.
s. Performance Requirement. A statement of the

performance expected for a critical element or other element.
A performance requirement may include, but is not limited to,
factors such as quality, quantity, timeliness, and manner of
performance.
t. Performance Review Board. Performance Review Boards

are established under the provisions of 5 U.S.C.
§ 4314(c) and shall review and evaluate the initial
summary rating of a senior executive's performance by
his/her supervisor, along with any response by the senior
executive or higher level review determination (if
appropriate), and make recommendations to the appointing
authority relative to the performance of the senior
executive. The appointing authority shall issue
appraisals/ratings only after considering the
recommendations of a Performance Review Board. The
Performance Review Board must also make recommendations
concerning individual performance awards (bonuses) to the
Deputy Attorney General.
u. Progress Review. The review of the senior

executive's progress in meeting the performance requirements.
A progress review is not a performance rating. Regulations
require at least one progress review midway through the
appraisal period.
v. Rating Levels. The plan describes five rating

levels: Outstanding, Excellent, Fully Successful, Minimally
Satisfactory, and Unsatisfactory.
w. Rating Official. The individual who is responsible

for communicating to the employee the elements of his or her
position, establishing performance requirements for those
elements, appraising performance, and assigning the initial
performance rating. Normally this is the employee's immediate
supervisor.
x. Relative Performance. The performance of a senior

employee with respect to the performance of other senior
employees, including their contribution to Department
performance, where appropriate, as determined by the
application of a certified appraisal system.
y. Senior Executive Performance Work Plan. The written

summary of work the senior executive is expected to accomplish
during the appraisal period and the requirements against which
performance will be evaluated. The plan addresses all critical
elements and any other performance elements established for the
senior executive.
z. Senior Executive Resources Board. The Senior

Executive Resources Board (SERB) provides overall management
and control of the Department’s SES. The members of the SERB
are the Deputy Attorney General, Associate Attorney General,
and Assistant Attorney General for Administration. The
Assistant Director for Leadership Effectiveness, Personnel
Staff, Justice Management Division serves as the Executive
Secretary for the SERB. Additional members may be added at the
direction of the Attorney General.
aa. Special Act or Service. A contribution or

accomplishment in the public interest which is: (l) a
nonrecurring contribution either within or outside of job
responsibilities, (2) a scientific achievement, or (3) an act
of heroism.
bb. Strategic Planning Initiatives. Department or

component strategic plans, annual performance plans,
organizational workplans, and other related initiatives.
7. TRAINING. Component heads are required to make effective

use of available resources (e.g., technology, learning,
information, etc.) to maximize SES employee performance. It is
essential that training and information on the PMS be provided
to SES employees and their managers and supervisors to assure
effective administration of the PMS. Topics covered should
include the Department's PMS for SES members, performance
appraisal, and pay incentive programs (i.e., pay for
performance and superior accomplishment awards).
8. CERTIFICATION CRITERIA. The plan incorporates the

following criteria designed to guide the Department in the
strategic use of the performance appraisal system to support
and attain the Department’s mission, goals, and objectives.
a. Alignment - performance expectations for individual senior

employees are linked to or derived from, the Department’s
mission, strategic goals, program/policy objectives,
and/or annual performance plans.
b. Consultation - Performance expectations are based on

senior employee involvement and input that are
communicated at the beginning of the appraisal period and
appropriate times thereafter.
c. Results - Performance expectations for senior

employees apply to their respective areas of responsibility;
reflect expected Department or Component performance; clearly
describe performance that is measurable, demonstrable, or
observable; and focus on tangible outputs, outcomes, milestones
or other deliverables;
d. Balance - Performance expectations for senior

employees include appropriate measures or indicators of
results; customer/stakeholder feedback; quality, quantity,
timeliness, and cost effectiveness, as applicable; and
competencies or behaviors that contribute to and are necessary
to distinguish outstanding performance;
e. Assessment and Guidelines - The Attorney General, or

the AAG/A, provides assessment of the performance overall as
well as each of its major program and functional areas, such as
reports of the Department’s GPRA goals and other program
performance measures and indicators, and evaluation measures
and indicators, and evaluation guidelines based, in part, upon
those assessments to senior employee rating and reviewing
officials and PRB members. These assessments and guidelines
are provided at the conclusion of the appraisal period but
before individual senior employee performance ratings are
recommended, so that they may serve as a basis for individual
performance evaluations as appropriate.
f. Oversight - Rigorous oversight of the appraisal

process is provided by the Attorney General or AAG/A who
certifies that:
(1) The senior employee appraisal process makes

meaningful distinctions based on relative
performance;
(2) The results of that process take into account, as

appropriate, the Department’s assessment of its
performance against program performance measures; and
(3) Pay adjustments, cash awards, and levels of pay based

on the results of the appraisal process accurately
reflect and recognize individual performance and/or
contribution to the Department’s performance.
The assessment may be any official or formal

organizational assessment done for the purpose of
determining how well the Department and its individual
components have performed during the appraisal period.
2. Accountability - Senior employee ratings (as well as

subordinates’ ratings for those with supervisory
responsibilities) that appropriately reflect the employee’s
performance expectations and are clearly linked to
organizational mission, GPRA strategic goals, or other program
or policy objectives.
3. Performance Differentiation - The Department is using

a five-level rating system for senior employees which includes
a rating level that reflects outstanding performance. The
appraisal process results in meaningful distinctions in
relative performance based on senior employees’ actual
performance against rigorous performance expectations and their
relative contributions to Department performance.
4. Pay Differentiation - Individual pay rates and pay

adjustments, as well as their overall distribution, reflect
meaningful distinctions among executives based on their
relative contribution to Department’s performance; The
Department’s highest performing senior employees must receive
the largest pay adjustments and/or highest pay levels
(including both basic pay and performance awards), particularly
above the rate for Level III of the Executive Schedule.
9. PROGRAM EVALUATION.
a. Reports on the Department's PMS activities will be

provided to the Executive Secretary of the Department's SERB by
the component heads. These reports will be used to monitor
performance management activities such as rating distributions,
award payouts, regulatory compliance, etc.
b. PRBs will be responsible for providing

recommendations to the appropriate appointing authority on the
SES performance management system.
c. Based on this data, recommendations or required

corrective actions will be developed as appropriate for
implementation in the organization.
SECTION 2
PERFORMANCE APPRAISAL FOR THE SENIOR EXECUTIVE SERVICE
10. PERFORMANCE APPRAISAL PREMISES AND PRINCIPLES. The

Department has adopted the following set of premises and
principles to guide performance management within the SES.
a. The Department of Justice workforce is comprised of

dedicated, hardworking public servants who strive to deliver
value to the American taxpayer.
b. The Department will pursue a workforce that is fully

representative of the diversity of the American people.
c. The Department will pursue a workforce that is

engaged and involved in designing a results-oriented,
performance-based, and customer-focused system that delivers
value.
d. Department of Justice federal leaders and managers

create a climate for excellence by communicating their vision,
values, and expectations clearly, and by:
(1) creating an environment in which every employee

may excel, regardless of race, color, religion, sex,
age, national origin, disability, sexual preference,
or parental status, and which is free of sexual
harassment;
(2) creating an environment for continual learning;
(3) working in partnership with employees to ensure

they reach their full potential;
(4) recognizing and rewarding excellence with

financial incentives and non-financial incentives,
such as increased flexibility to do jobs, more
meaningful work, and achieving a sense of
accomplishment; and
(2) taking timely action to both reward and

correct performance appropriately, ensuring that
excellence is the standard for all.
e. Individuals are personally responsible for being

results-oriented, performance-based, and customer-focused.
f. Leaders, managers, and employees have a mutual obligation

to provide value and excellence. This requires each individual
to be continually challenged to perform their best. Taking
action to improve the performance of each individual and
providing fair and accurate appraisals is imperative to
achieving our mission.
g. The Department of Justice is committed to pursuing

effective performance management.
11. PERFORMANCE APPRAISAL PERIOD.
a. The performance appraisal period for senior

executives is July 1 - June 30 of the following year, unless
advanced or delayed by appropriate authority.
b. If a senior executive fails to complete the

established minimum appraisal period because of reassignments,
change in supervisor, or other legitimate management reasons,
his/her appraisal period should be extended for the minimum
appraisal period at which time a rating of record should be
prepared.
c. The established performance appraisal period may be

terminated at any time after the minimum appraisal period is
completed, if there is adequate basis on which to appraise and
rate the senior executive's performance.
d. An appraisal or rating of an SES career appointee may

not be made within 120 days after the beginning of a new
Presidential Administration.
PERFORMANCE WORK PLANS.
a. Each senior executive must have a performance work

plan (PWP) that describes the individual and organizational
expectations for the appraisal period and sets the requirements
against which performance will be evaluated.
b. Rating officials must develop PWPs in consultation
with senior executives and communicate (in writing) the plans
to the executives on or before the beginning of the appraisal
period.
c. The PWP for career and noncareer SES members will be

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written in a standard/generic format with at least three
critical elements to ensure alignment with Departmental goals.
a. Elements must reflect individual and organizational

performance. They can be either capsulized aspects of the most
important duties and responsibilities associated with the SES
position or specific projects or tasks which can be logically
inferred from the duties and responsibilities cited in the
employee's position description. Accomplishment of
organizational objectives MUST be included in PWPs by
incorporating objectives, goals, program plans, work plans, or
by other similar means that account for program results.
b. Before or at the outset of the rating period (usually

within 30 days) or, in the case of an executive entering a new
position, as soon as possible (but no later than 30 days) after
entry into the position, a PWP must be either developed or
reviewed for continued appropriateness and the elements and
performance requirements covered by the PWP communicated to the
executive.
c. Final authority for establishing the elements and

requirements rests with the rating official. However, the PWP
can be modified, as appropriate, at any time during the
appraisal period to reflect changing priorities or shifts in
workload. Component guidance may require a second level review
of SES PWPs.
12. PERFORMANCE REQUIREMENTS.
a. Like critical elements, performance requirements must

be consistent with the goals and performance expectations in
the Department’s strategic planning initiatives.
b. Performance requirements MUST be written at the Fully

Successful level. They may also be written at additional
levels consistent with component level guidance. These
requirements are the standards against which the senior
executive's performance will be appraised.
c. The absence of a written performance requirement at a

given level does not preclude the assignment of a rating at
that level.
13. REVIEW OF PERFORMANCE WORK PLANS.
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a. A higher level review of all SES ratings to ensure

appropriate levels of quality and difficulty of performance
requirements within each SES PWP and in SES PWPs across the
component is encouraged, but not required.
b. The SERB will ensure that the review process across the
Department is fairly managed. These reviews may be made during
the appraisal process or at such other times as deemed
appropriate.
14. PROGRESS REVIEWS.
a. Component heads and supervisors must monitor each

senior executive's performance during the appraisal period and
provide ongoing, timely, and honest feedback to the senior
executive on progress in accomplishing the performance elements
and requirements described in the performance plan to sustain
and reinforce expected performance.
b. A progress review shall be held for each SES member

at least once during the appraisal period. At a minimum,
senior executives must be informed about how well they are
performing including their level of performance by comparison
with the elements and performance requirements established for
their positions.
c. Supervisors must provide advice and assistance to

senior executives on how to improve their performance.
d. If either the rating official or the executive feels

that modifications to previously established elements or
performance requirements are warranted because of unforeseen
shifts in workload or changes in priorities, he/she must be
prepared to discuss possible alternatives. If the rating
official feels that performance in one or more of the
established elements is lacking, he/she should discuss possible
corrective actions as well as the ramifications of unimproved
performance. The progress review should not be viewed solely
as a discussion of performance weaknesses or deficiencies, but
also serve as a forum for encouraging employees whose
performance is Fully Successful or Excellent to strive for even
greater achievement.
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e. If modifications in either elements or requirements

are warranted, they must be discussed and recorded during the
review process. At the end of the review session, both the
rating official and the executive should share a common
understanding of where the employee stands in relationship to
his/her PWP, what is expected of the employee through the
remainder of the rating period, and what actions, if any will
be initiated as a result of performance to date. The executive
and the rating official each sign and keep a copy of the PWP,
acknowledging that the progress review was conducted and
reflecting any modifications in the elements or requirements.
15. APPRAISING PERFORMANCE.
a. If an SES member has served in his/her current

position under written performance elements and requirements
for the established minimum appraisal period when the
performance appraisal cycle ends (June 30 of each year), and
there is adequate basis on which to rate the senior executive,
the employee must be rated as soon as practical after the end
of the appraisal period on the appropriate performance
appraisal record.
b. Each executive must be appraised on each element of

the PWP, unless the employee has had insufficient opportunity
to demonstrate performance on the element. On the rating date
or as soon as possible thereafter, the rating official should
be prepared to compare the overall achievements of the employee
with respect to each element and performance requirement based
on personal knowledge and a summary of accomplishments provided
by the rated executive.
c. The rating official should then briefly summarize in

narrative fashion the achievements of the executive against
each performance requirement established for the elements.
Rating officials have the option of summarizing in a narrative
fashion the achievements of the executive against the
performance requirements established for the job elements, or
to provide narrative comments only for rating levels to be
assigned that are not described in the executive’s PWP.
d. Appraisals of senior executive performance must be

based on both individual and organizational performance, taking
into account such factors as:
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(1) Results achieved in accordance with the goals of

the Government Performance and Results Act of 1993;
(2) Customer satisfaction;
(1) Employee perspectives;
(2) The effectiveness, productivity, and performance

quality of the employees for whom the senior
executive is responsible; and
(3) Meeting equal employment opportunity, and
diversity goals and complying with the merit system
principles set forth under section 2301 of title 5,
United States Code.
e. The supervisor will assign individual element ratings

as follows:
(1) Outstanding. Performance on an individual

critical element of the job which clearly
demonstrates a level of achievement which exceeds to
an exceptional degree the performance requirements
for Fully Successful. Performance at this level so
exceeds what is normally required of the job that it
is deserving of special recognition.
(2) Excellent. Performance on an individual

critical element which markedly exceeds the
performance requirements for Fully Successful.
(1) Fully Successful. Performance on an individual

critical element of the job which completely meets,
or exceeds to a limited degree, the performance
requirements for Fully Successful established at the
beginning of, or modified during, the rating period.
(2) Minimally Satisfactory. Performance on an

individual critical element of the job which just
falls short of the performance requirements for Fully
Successful. Performance at this level shows
significant deficiencies that require correction.
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(3) Unsatisfactory. Performance on an individual

critical element of the job which is substantially
below the performance requirements for Fully
Successful. Usually the employee's performance will
show serious deficiencies in terms of quantity,
quality, timeliness of work, or manner of
performance.
16. INITIAL SUMMARY RATING.
a. The supervisor must develop an initial summary rating

of the senior executive's performance, in writing, and share
that rating with the senior executive.
b. The supervisor will assign an initial summary rating

level as follows:
(1) Outstanding. A majority of the critical elements

must be rated Outstanding; no critical element may be
rated less than Excellent.
(2) Excellent. A majority of the critical elements must

be rated Excellent or higher and no critical element
may be rated less than Fully Successful.
(3) Fully Successful. A majority of the critical

elements must be rated Fully Successful or higher; no
more than one critical element may be rated Minimally
Satisfactory.
(4) Minimally Satisfactory. More than one critical

element must be rated Minimally Satisfactory and no
critical element may be rated Unsatisfactory.
(5) Unsatisfactory. Performance in one or more critical

elements must be rated Unsatisfactory.
17. RIGHT TO RESPOND IN WRITING AND REQUEST HIGHER LEVEL REVIEW.
a. Senior executives in the Department are entitled to

one higher level review, unless the component provides for more
than one review level.
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b. At the time of rating, the rating official shall

advise the senior executive of his or her right to respond in
writing to any aspect of the rating and to have that rating
(along with the written response, if any) reviewed at a higher
executive level, i.e., higher organizational level.
c. If the senior executive chooses to exercise his or

her right to respond or seek higher level review, such response
must be made to the rating official within 7 calendar days.
18. HIGHER LEVEL REVIEW.
a. After any initial discussions are completed and the

written response, if any, to the initial summary rating is
received, the rating official will, upon request of the
executive, forward the completed rating form to the appropriate
reviewing official (normally the next higher official in the
supervisory chain) for the higher level review.
b. The higher level official cannot change the

supervisor's initial summary rating, but may recommend a
different rating to the PRB and the appropriate appointing
authority.
c. Both the executive and the rating official must be

given copies of the reviewer's findings and recommendations.
d. After the higher level review is completed, the

appraisal package (the rating and accompanying documentation,
including the higher level review’s comments and
recommendation, if any) will be forwarded to a PRB for review.
19. PERFORMANCE REVIEW BOARD REVIEW.
a. The PRB must review the rating and comments from the
senior executive and the higher level official, if any, and
make recommendations to the appropriate appointing authority.
b. The PRB will consider the material forwarded and make

a written recommendation to the appropriate appointing
authority regarding the annual summary rating to be assigned as
well as any related matters such as performance pay, basic pay
rate adjustments, performance awards, reassignments, and
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removals. (See Appendix 1 for the Establishment and Functions

of the Department of Justice SES PRBs.)
20. ANNUAL SUMMARY RATING.
a. The appropriate appointing authority will make the

final decision in writing regarding the annual summary rating
to be assigned and related personnel recommendations after
considering any PRB recommendations.
b. The annual summary rating approved by the appropriate

appointing authority is final and becomes the executive’s
official rating. Senior executive performance appraisals and
ratings are not appealable.
c. One copy of the approved rating form must be provided

to the employee; another copy may be retained by the rating
official; and a third copy will be forwarded to the servicing
personnel office for retention in the Official Personnel File
(OPF) or Employee Performance File (EPF).
d. Personnel actions resulting from the annual summary

rating must be promptly initiated by the rating official.
21. DETAILS AND JOB CHANGES.
a. Position Changes Within the Department. When an

executive occupies two or more positions in the Department
during the appraisal cycle (in which the executive served under
written elements and performance requirements for the minimum
appraisal period) an interim rating must be prepared. This
interim rating, along with the PWP upon which it was based,
must be forwarded to the new supervisor for inclusion in the
rating of record due at the end of the appraisal cycle. The
weight given to this interim rating should generally be
proportionate to its share of the appraisal period. When such
interim ratings are used to develop a rating of record, both
the interim ratings and the PWPs upon which they are based must
be attached to the final annual summary rating.
b. Temporary Assignments Within the Department. If the

senior executive is detailed or temporarily reassigned WITHIN
the Department and if the assignment is expected to last the
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minimum appraisal period or longer, written critical elements

and performance requirements MUST be provided to the employee
and an interim rating must be prepared based on the performance
during the assignment. The weight given to this interim rating
in preparing the rating of record should generally be
proportionate to its share of the appraisal period.
c. Temporary Assignments Outside the Department. If the

employee is temporarily assigned OUTSIDE the Department,
reasonable efforts must be made to obtain appraisal information
from the outside organization which will be considered in
deriving the employee's next summary rating. Accordingly:
(1) If the employee has served in the Department for the

minimum appraisal period, the employee must be rated.
The rating of record shall take into account
appraisal information obtained from the borrowing
organization; or
(2) If the employee has not served IN the Department for

the minimum appraisal period, but has served for the
minimum appraisal period in a position OUTSIDE the
Department, reasonable efforts must be made to
prepare a rating of record using appraisal
information obtained from the borrowing organization.
d. Transfers From Other Agencies. If an employee

transfers from another agency into the Department during the
appraisal cycle, any interim or summary rating(s) which are
forwarded from the losing agency (and which encompass periods
of time included in the Department's appraisal cycle) MUST be
considered in deriving the rating of record. Weight given to
these ratings should be proportionate to their share of the
appraisal cycle.
e. Transfers To Other Agencies. If an executive

transfers to a new agency at any time during the appraisal
period, a summary (interim) rating must be prepared by the
employee's supervisor and provided to the gaining agency.
22. PROCESSING AND RETENTION OF PERFORMANCE RATINGS.
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a. Control dates established by Departmental guidance

must be adhered to in order to ensure the proper review of
ratings by PRBs.
b. All performance related records must be maintained in

either the OPF or EPF for no less than 5 years from the date
the rating is issued.
c. The performance appraisals for the most recent 5

years and the most recent PWP and interim rating will be
forwarded as part of the OPF to a gaining agency upon an
employee's transfer. (Note: The FBI is exempt from the
requirement to release performance plans and appraisals.)
23. VALIDITY OF RATINGS.
a. Each final annual summary rating issued within a

component of the Department (or other agency which is subject
to the performance appraisal requirements of 5 U.S.C. chapter
43, subchapter II) supersedes the previous one and is
considered to be the valid rating of record.
b. When a new SES employee enters on duty with the Department

at any time during the appraisal period, the most recent annual
summary rating rendered in the former agency will be recognized
as the official rating of record until it is superseded by a
rating of record issued under this plan.
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SECTION 3
ACTIONS BASED ON LESS THAN FULLY SUCCESSFUL PERFORMANCE
24. GENERAL.
a. 5 CFR § 430.306(a) requires that supervisors must

advise and assist employees in improving their performance.
b. Any SES member receiving an Unsatisfactory rating

shall be reassigned or transferred within the SES or removed
from the SES. However, any SES member who receives two
Unsatisfactory ratings within any period of 5 consecutive years
shall be removed from the SES.
c. A Minimally Satisfactory rating permits a year's

period to show improvement. However, any SES member who
receives two less than Fully Successful ratings within 3
consecutive years shall be removed from the SES.
d. When an employee's performance falls below Fully

Successful (whether or not a formal appraisal has been given),
good personnel practice suggests that this determination should
trigger prompt action on the part of the supervisor to bring
the employee's performance up to an acceptable level or, if
warranted in the case when an employee is Unsatisfactory, to
begin steps leading to the placement of the employee in a job
he or she can successfully perform. Exactly what steps should
be taken depends on the circumstances of the case.
e. Formal training, on-the-job training, counseling, and

closer supervision are common approaches to below par
performance problems. An organization has no justification,
however, for continuing to retain an employee whose performance
is Unsatisfactory after attempts to improve the employee's
performance or place him or her in another position fail.
25. PROCEDURES. Since performance appraisal is a continuous

process, the following procedures shall be followed at any time
during the year after the minimum appraisal period has been
completed when a supervisor concludes that the employee's
performance in one or more critical elements is below Fully
Successful.
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a. Discussion. There must be a discussion between the

supervisor and the employee for the purpose of:
(1) Advising the employee of specific shortcomings
between observed performance in the critical
element(s) under scrutiny and the performance
requirements associated with the particular
element(s); and
(2) Providing the employee with a full opportunity

to explain the observed deficiencies.
b. Determine Appropriate Action.
(1) If the supervisor feels that the matter has been

resolved to his or her satisfaction during the course
of the discussion, the supervisor need not take
further formal action at this point.
(2) If the supervisor of the senior executive feels

that further action is necessary, he or she shall
complete an appraisal and record his or her
assessments on the rating form. The supervisor shall
advise the senior executive of his or her right to
respond in writing within 7 calendar days and of the
action he or she is recommending with respect to the
proposed Minimally Satisfactory or Unsatisfactory
rating. The supervisor should also advise the senior
executive of the review levels required before the
rating and proposed action become final, i.e., a
possible review by a higher level official, the PRB,
and, ultimately, the Deputy Attorney General or
component head as appropriate. The senior executive
should also be advised that the rating and proposed
action do not become final until the Deputy Attorney
General’s/component head’s decision is made.
(3) If a first-time rating of Minimally Satisfactory

is approved by the Deputy Attorney General/component
head, it does not carry with it any legally mandated
personnel action. However, as a practical matter,
such a rating should carry with it a recommendation
reflecting the marginal performance it represents.
Recommended actions that the rating official may wish
to consider include: (1) a reduction in SES pay
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(limited by OPM regulation to one level within a 12-

month period); (2) additional training designed to
correct the deficient performance; or (3)
reassignment to another SES position.
(4) A career appointee may be reassigned to

another SES position only if the appointee receives at
least 15 days advance written notice for a reassignment
within the commuting area and at least 60 days advance
written notice for a reassignment outside the commuting
area. The appointee may voluntarily waive the above
notices. Such waivers must be in writing.
(5) If the Unsatisfactory rating is approved by

the Deputy Attorney General/component head, the senior
executive must be reassigned to a different position
within the SES or removed from the SES in accordance with
the provisions of 5 CFR Part 359, Subpart E.
(i) A career appointee may be removed from the

SES at any time prior to the completion of the
probationary period required under
5 U.S.C. § 3393. However, a career appointee
who has completed the probationary period and
whose removal from the SES for less than Fully
Successful executive performance is
contemplated is entitled, to a 30-day advance
written notice of such action (see
5 CFR § 359.502). In addition, upon request,
the career appointee shall be granted an
informal hearing before an official designated
by the Merit Systems Protection Board at least
15 days before the effective date of the
removal. At this time, the career appointee
may appear and present arguments. Such hearing
shall not give the career appointee the right
to initiate an action under 5 U.S.C. § 7701
(formal appellate procedure) nor need the
removal action be delayed as a result of the
granting of such hearing. A career appointee
who is removed from the SES for less than Fully
Successful performance is entitled to be placed
in a civil service position (other than an SES
position) in accordance with the provisions of
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5 U.S.C. § 3594.
(i) The removal of an SES career appointee for

performance reasons is subject to the
120-day moratorium, except for a removal based
on an unsatisfactory rating given before the
appointment of a new agency head or noncareer
supervisor that initiated the action. This
includes an optional removal based on one
unsatisfactory rating, a mandatory removal
based on two unsatisfactory ratings in 5 years,
and a mandatory removal based on two less than
fully successful ratings in 3 years when the
second rating is an unsatisfactory rating.
(6) SES noncareer and limited appointees may be

reassigned or removed from the SES at any time. Such SES
members are not entitled to the procedures described in
subparagraphs (b)(5) i-ii above. Regulations require that
noncareer and limited appointees receive notice in writing
before the effective date of a removal (See 5 CFR Part
359, Subpart I.).
-47-
APPENDIX TO DOJ SES PMS PLAN
ESTABLISHMENT AND FUNCTIONS OF

THE DEPARTMENT OF JUSTICE
SES PERFORMANCE REVIEW BOARDS
1. GENERAL. Under the provisions of 5 U.S.C. § 4314(c), each

agency is required to establish one or more SES Performance
Review Boards (PRBs) which shall review and evaluate the
initial appraisal of a senior executive's performance by
his/her supervisor, along with any response by the senior
executive or higher level review determination (if
appropriate), and make recommendations to the appointing
authority relative to the performance of the senior executive.
The appointing authority shall issue appraisals/ratings only
after considering the recommendations of a PRB.
2. ESTABLISHMENT OF BOARDS. Component heads will jointly

establish one or more PRBs to review ratings and bonus
recommendations of the executives within their appointing
authority. There will be a sufficient number of PRBs
established to review, evaluate, and make recommendations with
respect to the individual performance of the senior executives
in the component.
3. MEMBERSHIP.
a. Each PRB is composed of three or more members. The

size of the PRB will depend upon the number of actions to be
reviewed.
b. The Department establishes a standing PRB member list

comprised from Department career SES appointees Each year, the
Assistant Attorney General for Administration shall provide
updates to the list of new Department SES members that are
eligible to serve on standing PRBs. A PRB member’s name will
be published in the Federal Register before their service
begins. Those individuals on the list can serve until they
have left the SES. Executives from Federal Bureau of
Investigation and the Drug Enforcement Administration are
exempt from publishing their executive’s names for security
reasons, but can serve as members on any Department of Justice
PRB.
-48-
c. The components have flexibility in determining who

from the list will serve on their PRB(s)(including the
chairperson).
d. Members of PRBs are appointed in such a manner as to

assure consistency, stability, and objectivity in reviewing
performance appraisals.
e. Members of each PRB shall:
(1) Be career SES members (or equivalent);
(2) Have current Fully Successful performance ratings or

above;
(3) Consistently apply Department appraisal systems

effectively in their respective organizations; and
(4) Possess a thorough knowledge and understanding of the

performance appraisal system and other pertinent
aspects of the SES.
f. Appointees will not serve on the PRB reviewing the

actions of their own organizations. Accordingly, the
supervisory official who made or reviewed the initial appraisal
of an executive may not act as a member of the PRB considering
the appraisal of that subordinate executive. In addition, a
subordinate to an executive whose performance appraisal is
under review may not act as a member of the PRB with respect to
his or her superior. No senior executive may review his/her
own rating. A member of a PRB in conflict with the above will
remove himself or herself from action or consideration by the
PRB and such action/consideration will be accomplished by other
PRB members.
4. FUNCTIONS.
a. Each PRB shall review and evaluate the initial

appraisal and rating by the rating official of the senior
executive, the senior executive's written response (if any),
and the written comments of the reviewing official (if such
written comments were made), and any accompanying
recommendations for awards, bonuses, proposed corrective
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actions, or the like. In its consideration of a case, a PRB

may call witnesses if it feels added clarification is needed.
Each PRB shall consider equity and consistency among the
ratings of executives as well as the accuracy, fairness, and
effectiveness of individual ratings. A primary goal of the
review is to ensure that final ratings above the Fully
Successful are awarded only to senior executives whose
performance fully justifies them. A PRB may review any aspect
of the appraisal process, including the critical elements and
performance requirements set for a senior executive prior to or
as adjusted (modified) during the performance appraisal period.
b. PRB recommendations shall be in writing and shall be

submitted under signature of the PRB chairperson, along with
the proposed rating and accompanying documentation, to the
appropriate appointing authority. Where the PRB does not
concur with the initial appraisal or rating, or the record
shows employee or reviewing official disagreement with the
rating official's actions, the PRB’s recommendations shall be
supported by a written justification. No appraisal or rating
is final until the appropriate appointing authority takes final
action. As has been indicated earlier, a PRB is also
responsible for reviewing or making recommendations to the
appointing authority concerning individual performance actions
such as bonuses for career SES appointees or pay increases for
career and noncareer SES appointees.
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CHAPTER VII. PAY FOR THE SENIOR EXECUTIVE SERVICE
A. SALARY LEVELS for the SES are established as a function of

personal qualifications, individual and organizational
performance, and the duties and responsibilities of the
position held by the senior executive, and DOJ guidance. The
SES pay band has a floor equal to 120% of GS 15, step-1, and a
ceiling of Executive Level II. During periods when the DOJ
pay-for-performance system is not certified by the Office of
Personnel Management and Office of Management and Budget, the
payband will be limited to Executive Level III. Decisions
affecting pay levels for those members in key executive
positions must be confirmed by the Deputy Attorney General
prior to being made final.
B. SETTING INDIVIDUAL PAY RATES.
1. Initial Salary Level. The Director will establish an

initial salary which reflects up to a 10% increase over
pre-SES salary. In instances where a greater increase is
warranted, the Director may seek a waiver from the Deputy
Attorney General.
2. Pay Adjustments. The DOJ will conduct a salary review of

all senior executives on at least an annual basis.
Recommendations for merit based salary increases will be
provided by the Director.
a. Lowering a senior executive's pay. A senior

executive's pay may be lowered as the result of poor
performance or conduct.
b. Pay Computation. To compute the hourly rate of an

SES employee, divide the annual rate by 2,087 (5 CFR
534.404).
c. Premium Pay. SES members are excluded from all forms

of premium pay, including overtime, Sunday and
holiday pay rates, night, standby, irregular and
hazardous duty differential, and compensatory time
off (5 U.S.C 5541(2)(xvii).
C. AWARDS.
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1. Presidential Ranks. SES career appointees may be awarded

one of two Presidential ranks for sustained superior
performance, Distinguished Rank or Meritorious Rank. The
Director will receive recommendations for candidates for these
ranks from the Deputy Director and other high ranking heads of
offices and divisions. The recommendations take into account
an individual's performance over a period of three years in the
SES. The Director will forward recommendations to the Attorney
General who will make final nominations to the President.
The President may award to any SES career appointee nominated

by the Attorney General the rank of:
a. Distinguished Executive for sustained extraordinary

accomplishment, or
b. Meritorious Executive for sustained accomplishment.
An SES appointee who receives a rank of either

Distinguished or Meritorious Executive shall not be entitled to
receive that same award during the following four years. A
Distinguished rank award winner cannot receive a performance
award in the same calendar year.
A career SES member awarded a Distinguished or Meritorious

rank will receive a monetary award consistent with the
appropriate rank (5 U.S.C. §4507), currently 20% of basic pay
for Meritorious and 35% of basic pay for Distinguished. A
Distinguished rank may be awarded to no more than one percent
of the total number of SES members. A Meritorious rank may be
awarded to no more than five percent of the total number of SES
members.
2. Performance Awards (Bonuses) may be paid to a limited

number of executives who demonstrate exceptional
performance in attaining organizational goals.
Eligibility for performance bonuses is determined during
the annual performance appraisal process. All career SES
members rated at least Fully Successful in all critical
elements may be recommended by the Director to the Deputy
Attorney General for a performance award of between five
and 20 percent of the senior executive's basic pay.
Funding for performance awards granted in any fiscal year
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is based on three to ten percent of the aggregate salary

of career appointees as of the end of the preceding fiscal
year. A career SES member may receive only one such award
for performance in a single year.
3. Incentive Awards. Incentive awards, including time-off,

significant accomplishment, and on-the-spot awards
recognize contributions resulting in tangible or
intangible benefits or savings. These awards are designed
to improve government efficiency, economy and
effectiveness by motivating and rewarding employees for
efforts which benefit the government. Senior executives
are normally exempt from monetary Incentive Awards in lieu
of their eligibility to receive performance awards as
described in item #2, above. Executives remain eligible
for recognition under the Suggestion, Director's Awards,
and Attorney General's Awards Programs.
a. Basis. Awards may be based on contributions such as

suggestions, inventions, or special acts or service in the
public interest connected with or related to official
employment.
b. Form of recognition. An incentive award may be either

monetary or non-monetary. A non-monetary award could be
in the form of a medal, certificate, plaque, citation,
badge, or other similar item that has an award or honor
connotation.
c. Approval. Recommendations for executive

Incentive Awards must be submitted in writing to the SES
Board. Such recommendation must clearly identify the
unusual nature of the accomplishment and why the
achievement qualifies for recognition outside of the
performance award process. In addition to approval by the
SES Board, final concurrence/approval of the Director and
the Department of Justice is also required.
D. LIMITATION ON SALARY. The aggregate amount of pay that a

member of the SES may receive during any calendar year may not
exceed the salary limitation described in 5 U.S.C. §5307.
Included in the determination of aggregate pay are: base pay;
locality adjustment; recruitment and relocation bonuses;
retention allowance; performance awards and rank awards. Any
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excess amount (excluding retention pay) will be paid in a lump

sum amount at the start of the next calendar year. Monies
received from bonuses, rank or performance awards are not
included in computing an SES member's retirement pay.
-54-
CHAPTER VIII. EXECUTIVE DEVELOPMENT
A. EXECUTIVE DEVELOPMENT PROGRAM. Employees will be provided

progressive developmental opportunities prior to, and
following, entry into the SES. The Director will ensure that
funding and staffing, sufficient to support this policy, are
available.
1. Program Management. Overall management of the SES

development program will be provided by the SES Board.
2. Monitoring. The SES Board will have responsibility for

establishing an executive development program. The
program for SES incumbents will encompass developmental
experiences which, through continuing short-term
opportunities and periodic involvement in more extended
programs, will:
a. Help meet organizational needs for managerial

improvements and increased productivity;
b. Help the individual keep up to date in professional,

technical, managerial, social, and political areas;
c. Meet the need for intellectual and personal growth;

and
d. Include provisions for executive sabbaticals for

carefully selected members. Members of SES will be
responsible for continuing to develop their executive
knowledge, skills, and abilities and for fostering the
development of their subordinates.
B. SABBATICALS. A sabbatical may be granted to any career

appointee in the SES by the Director/Deputy Attorney General.
Sabbaticals are granted to permit a career appointee to engage
in study or uncompensated work experience which will contribute
to the individual's development and effectiveness. A
sabbatical may not exceed 11 months nor may it result in the
loss of, or reduction in, pay or leave to which the career
appointee is otherwise entitled. The Director or designee may
authorize travel expenses and per diem allowances if these are
deemed essential for the study or experience.
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1. Eligibility. A sabbatical may not be granted to any career

appointee:
a. More than once in any ten year period;
b. Unless the appointee has completed seven years of

service:
(1) In one or more positions in the SES;
(2) In one or more positions in the civil service,

the level of duties and responsibilities of which are
equivalent to those of SES positions; or
(3) In any combination of such positions except that

not less than two of the seven years of service must
be in SES; and
c. If the appointee is eligible for voluntary

retirement with a right to an immediate annuity.
2. Service Agreement. The career appointee accepting a

sabbatical must agree to serve in the civil service upon
the completion of the sabbatical for a period of two
consecutive years. If the career appointee fails to meet
this agreement (except for sufficient reason as determined
by the Director/Deputy Attorney General or designee who
granted the sabbatical), the appointee shall be liable to
the United States for all expenses, including salary, of
the sabbatical.
3. Employment Provisions. While an individual is on a

sabbatical:
a. The individual continues to receive his or her SES

salary;
b. The individual continues to earn leave and is charged

for any leave taken; and
c. The individual remains subject to the SES performance

appraisal system, but should be evaluated against
standards appropriate to activities involved in the
-56-
sabbatical. It would not be appropriate to award a bonus

for performance during the sabbatical.
-57-
CHAPTER IX. MISCELLANEOUS PROVISIONS
A. TRAVEL EXPENSES of SES candidates may be paid by the FBI

pursuant to the applicable provisions of the MAOP if these
expenses are incurred incident to pre-employment interviews
requested by the FBI.
B. ANNUAL LEAVE accrued by individuals after entry into the SES is

subject to a limit of 720 hours in accordance with Title 5
U.S.C., Section 6304 as amended by Public Law 103-356,
10/13/94. Any employee who became a member of the FBI SES
prior to 10/13/94 may be entitled to an adjusted annual leave
ceiling and should contact the PRAU or the Employee Benefits
Unit.
Effective October 31, 2004, the Workforce Flexibility Act

of 2004 provides that all members of the FBI SES will accrue
eight hours of annual leave per pay period regardless of their
total number of years of federal service.
When an employee moves into an SES appointment, any

annual leave at the time of the move in excess of the
employee's maximum accumulation level (normally 240 hours)
is subject to forfeiture if not used by the beginning of the
leave year immediately following entry into the SES, unless
restored under conditions provided by 5 U.S.C. Section 6304(a)-
(d). The annual leave which is not subject to forfeiture and
the annual leave which accrues while serving in the SES are
carried forward into subsequent leave years up to the limit of
720 hours. Once the 720 hour limit is reached, any additional
annual leave accrued must be used by the end of the leave year
in which accumulated or forfeited, unless restored under
conditions provided by 5 U.S.C., Section 6304(a)-(d).
If an individual moves from an SES appointment to a non-

SES appointment, any annual leave in excess of that which
otherwise would be permitted remains to the individual's
credit. Subsequently, if the individual uses more annual leave
in a leave year than earned, the balance carried forward will
become the new leave ceiling if it is still above the maximum
limit permitted for the position.
-58-
C. LAST MOVE HOME EXPENSES. Individuals transferred to accept a

position in the SES or SES members who are transferred in the
interest of the Government from one official station to another
for permanent duty during or after five years
preceding retirement eligibility are authorized travel,
transportation and moving benefits as provided in
5 U.S.C. Sec 5724(a)(3).
D. FURLOUGHS.
1. Definition. "Furlough" means placing a career appointee

in a temporary status without duties and pay because of
lack of work or funds or other nondisciplinary reason.
2. Short furloughs.
a. A short furlough is one that will last for 30

consecutive calendar days or less (or for 22 workdays or
less if the furlough does not cover consecutive days)
within a 12-month period beginning on the first day of the
furlough.
b. Competitive procedures are not required in selecting

the SES appointees to be furloughed for short periods.
Selections will be made for sound management reasons.
3. Long furloughs.
a. A long furlough is one that will last for more than 30

consecutive calendar days (or for more than 22 workdays if
the furlough does not cover consecutive days) within a 12-
month period beginning on the first day of the furlough.
The furlough may not exceed one year.
b. An SES appointee may be furloughed for more than 30

days only when the FBI intends to recall the appointee to
a duty status with pay within one year from the beginning
of the furlough. A furlough shall not be used when the
executive will have to be separated through a RIF action
when the furlough terminates.
c. Competitive procedures, developed for competition for

job retention under a RIF, will be used in selecting SES
career appointees for long furloughs of more than 30 days.
-59-
4. Notice requirements.
a. The career appointee will be given written notice at

least 30 calendar days before the effective date of the
start of the furlough. The notice will include the
following information:
(1) The reasons for the decision to take the furlough

action.
(2) The expected duration and the effective dates of the

furlough.
(3) The basis for selecting the appointee for furlough

when some, but not all, SES appointees in a given
organizational unit are being furloughed.
(4) The place where the appointee may inspect the

regulations and records pertinent to the action.
5. Appeal Rights. An employee may appeal a furlough decision

by writing to the Director within 20 days of the effective
date of the furlough.
E. TRAINING. Career appointees will be informed of the goals and

objectives of the FBI SES. Additional training opportunities
may be recommended by an executive's immediate superiors, the
SES Board, or self initiated by the executive with approval of
an immediate superior.
F. REPORTS AND EVALUATION. The FBI will report to the Department

of Justice such information, and take such corrective action,
as the Attorney General may direct as a result of his/her
oversight responsibilities.
G. EXTENSION BEYOND MANDATORY RETIREMENT. The Attorney General

has delegated to the Director of the FBI, the authority to
grant exceptions to mandatory retirement for FBI law
enforcement members of the SES. These exceptions may be
granted to a limited number of individuals -- no more than 20
individuals at any given time -- whose continued service would
be in the public interest and promote the mission of the FBI.
-60-
Any SES member who is a Special Agent and desires to extend

his/her Bureau Service, must:
1. Approximately 18 months prior to mandatory retire-

ment, make known their intentions in a memorandum to
the Director. The memorandum must specify to what age
or date the requestor desires to continue service, not
to exceed age 60. Any employee considering this option
is encouraged to discuss this matter fully with the
Director.
2. The Director may furnish the senior executive's

request along with his/her observations to the SES
Board.
3. The SES Board will review all pertinent information and

provide the Director with a recommendation at which
time the Director will serve as the final authority for
approving/denying the request.
H. RECORDS. Unless otherwise instructed by FBIHQ, all

performance related documentation including, but not limited
to, information maintained in any performance file or folder
other than the employee’s official FBIHQ or Field Office
Personnel File must be maintained for a period of one calendar
year beyond the date the associated summary/initial/final
rating is issued.
-61-
EXHIBIT 3
DELETION CODES
G. THE LAW ENFORCEMENT PRIVILEGE - THE DISCLOSURE OF THIS INFORMATION

COULD CAUSE HARM TO, IMPEDE, IMPAIR, OR HINDER AN INVESTIGATION AND/OR
AN INVESTIGATIVE INTEREST OF THE FBI.
P. THE PRIVACY ACT OF 1974, 5 U.S.C. § 552a
P-1 INFORMATION, THE DISCLOSURE OF WHICH WOULD BE AN UNWARRANTED

INVASION OF PERSONAL PRIVACY.
S. PERSONAL IDENTIFYING INFORMATION RELATED TO LAW ENFORCEMENT

PERSONNEL AND THEIR FAMILY MEMBERS, THE DISCLOSURE OF WHICH IS
ROUTINELY GUARDED FOR SECURITY REASONS.
EXHIBIT 4
e U.S. Department of Justice 1202
Approved On: November 2 6, 2013
DOJORDER
EXECUTIVE RESOURCES MANAGEMENT
PURPOSE: This Order establishes Department of Justice (DOJ) policies that govern
executive resources management. Executive Resources include Senior
Executive Service (SES), Senior Level (SL), and Scientific and
Professional (ST) positions and appointments. SL and ST positions are
collectively referred to as "Senior Professional" (SP) positions.
SCOPE: The provisions of this Order apply to all SES and SP positions in the
Department, except that only the following portions of the Order apply
to positions in the Federal Bureau of Investigation (FBI) and Drug
Enforcement Administration (DEA): Section I.A - Delegation; and
Section LO - Position Titles.
ORIGINATOR: Justice Management Division (JMD), Human Resources (HR) Staff.
CATKGORY: (I) Administrative, (II) Human Resources.
AUTHORITY: 5 U.S.C. §§ 3104, 3131-3134, 3151-3152, 3301, 3324-3325, 3391-3396,

4301-4303, 4311-4314, 5108, 5376, 5381-5385 ; 5 U.S.C . Chapter 75 .
C ANCELLATION: DOJ Order 1920. l; DOJ Order 1200.1, Part 8; Deputy Attorney General
(DAG) Memoranda, Delegation of Authority for Executive Resources,
December 29, 1999; DAG Memorandum, Updated Delegation of
Authority for Senior Executive Service Positions, May 27, 2008.
DISTRIBUTION: This Policy Statement is distributed electronically to those components

referenced in the "SCOPE" section as well as posted to the DOJ
Directives electronic repository (SharePoint).
APPROVED BY: E~·~,P]:f

Attorney General
U.S. Department of Justice
Order 1202
ACTION LOG
All DOJ directives are reviewed, at minimum, every five years and revisions are made as necessary. The
action log records dates of approval, recertification, and cancellation, as well as major and minor
revisions to this directive. A brief summary of all revisions will be noted. In the event this directive is
cancelled or superseded, or supersedes another directive, that will also be noted in the action log.
Action Authorized by Date Summary

Initial Approval The Attorney November 26, 2013 Establishes DOJ policies that
General (AG) govern executive resources
management.
Minor Change The Assistant June 19, 2014 On the last page of the Appendix,
Attorney General for the reference to “Assistant Chief
Administration Immigration Judge” under “Key
SL Positions” was deleted. These
judges are on the Immigration
Judge pay scale and are not SL
positions.

Order 1202
TABLE OF CONTENTS
Glossary of Terms ........................................................................................................................... 4
I. Policy .......................................................................................................................................... 7
A. Delegation. .......................................................................................................................... 7
B. Allocations. ......................................................................................................................... 7
C. Position Designation........................................................................................................... 8
D. Position Titles..................................................................................................................... 8
II. Roles and Responsibilities ........................................................................................................ 8
A. Deputy Attorney General (DAG)........................................................................................ 8
B. Component Heads. .............................................................................................................. 8
C. Senior Executive Resources Board (SERB). ...................................................................... 8
D. Executive Resources Boards (ERB). .................................................................................. 9
E. Performance Review Boards (PRB). ................................................................................ 10
Appendix - U.S. Department of Justice Executive Resources Delegations of Authority ............ 12

Order 1202
GLOSSARY OF TERMS
DEFINITIONS
Term Definition
Annual Summary The overall rating level that an appointing authority assigns at the end
Rating of the appraisal period after considering a PRB’s recommendations.
This is the official rating.
Appointing The AG or other Department official with authority to make an SES or

Authority SP appointment. For purposes of performance management, the
appointing authority is the AG or other Department official with
authority to issue an annual summary rating.
Career Reserved SES A position that meets the criteria in 5 C.F.R. § 214.402.
Position
Career SES An appointment to an SES position based on OPM’s approval of the
Appointment appointee’s executive qualifications.
Component An Office, Board, Division, or Bureau of the Department of Justice as
defined in 28 C.F.R. § 0.1.
General SES Position A position that does not meet the criteria in 5 C.F.R. § 214.402.
Higher Level An official designated to provide a higher level review of an SES or
Reviewing Official SP appointee’s initial appraisal, typically the second-level supervisor.
Initial Summary The overall rating level the supervisor derives from appraising the
Rating SES or SP appointee’s performance during the appraisal period and
forwards to the PRB.
Key SES, SL and ST High-ranking executive positions over which the AG and Deputy
Positions Attorney General (DAG) retain certain personnel authorities. These
positions are listed in the Appendix of this Order.
Limited Emergency A non-renewable appointment, not to exceed 18 months, to a SES

SES Appointment position established to meet a bona fide, unanticipated, urgent need.
Limited Term SES A non-renewable appointment not to exceed three years to a SES
Appointment position where the duties will expire at the end of such term.
Non-Career SES An SES appointment that is not a career, limited term, or limited
Appointment emergency appointment.
Performance The accomplishment of the work described in the SES or SP
appointee’s performance plan.

Order 1202
Performance The review and evaluation of an SES or SP appointee’s performance

Appraisal against performance elements and requirements documented on a
Department-approved SES or SP Performance Work Plan (PWP).
Performance The framework of policies and practices established under 5 U.S.C. §
Management System 4312 and 5 C.F.R. Part 430, Subpart C, for SES, or 5 U.S.C. § 4302
and 5 C.F.R. Part 430, Subpart B, for SPs, for planning, monitoring,
developing, evaluating, and rewarding both individual and
organizational performance and for using resulting performance
information in making personnel decisions.
Performance Review An agency board that is responsible for making recommendations to
Board the appointing authority on SES and SL performance ratings and
bonuses. Agencies may have more than one PRB.

Order 1202
ACRONYMS
Acronym Meaning
AAG/A Assistant Attorney General for Administration
AG Attorney General
CHCO Chief Human Capital Officer
DAG Deputy Attorney General
DEA Drug Enforcement Administration
DOJ Department of Justice
ERB Executive Resources Board
FBI Federal Bureau of Investigation
JMD/HR Justice Management Division Human Resources
OMB Office of Management and Budget
OPM Office of Personnel Management
PL Public Law
PRB Performance Review Board
SERB Senior Executive Resources Board
SES Senior Executive Service
SL Senior Level (positions)
SP Senior Professional (positions)
ST Scientific and Professional (positions)

Order 1202
I. Policy
This Order establishes the Department of Justice (DOJ or Department) policies that govern
executive resources management. These policies ensure that human resources decisions relating
to executive resources are consistent with principles of fairness and comply with all applicable
laws. DOJ will not discriminate based on race, color, national origin, religion, sex, gender
identity, age, political affiliation, disability, marital status, sexual orientation, status as a parent,
membership or non-membership in an employee organization, genetic information, or other non-
merit factor. The Department is an Equal Opportunity/Reasonable Accommodation Employer.
This Order is based on the executive personnel provisions of the Civil Service Reform Act (Pub.
L. No. 95-454) as codified in Titles 5 and 28 of the U.S. Code, and regulations and guidance
issued by the Office of Personnel Management (OPM). Additional administrative policy
guidance affecting the DOJ’s executive resources shall be issued as necessary by the Assistant
Attorney General for Administration (AAG/A).
A. Delegation. The Attorney General (AG) delegates to the heads of Department

Components the authorities identified in the Appendix. The Appendix also identifies the
authorities retained by the Deputy Attorney General (DAG) or, in some cases, the AG.
The Appendix identifies certain SES, SL, and ST positions as key positions over which
the AG retains certain, enumerated authorities. The DAG may modify the delegations
made in this Order pursuant to the DAG’s authority under 28 C.F.R. § 0.15(b)(1)(i).
B. Allocations. The DAG, with the support of the Senior Executive Resources Board
(SERB), oversees the biennial allocation of executive resources (SES and SP) to
Components.
1. During each biennial cycle, Components shall provide to Justice Management

Division, Human Resources (JMD/HR) a comprehensive assessment of their
executive resources needs. This assessment shall identify the Components’
established SES and SP positions and any requests for new SES and SP positions, and
it shall prioritize all established and requested positions in terms of their relative
contribution to the Department’s mission.
2. JMD/HR, under the guidance of the Chief Human Capital Officer (CHCO), shall
compile the Components’ assessments and present them to the AAG/A. The AAG/A
shall review and make recommendations to the DAG regarding the Components’
requests for SES and SP positions.
3. Following transmittal of the AAG/A’s recommendations, the SERB shall review and
make recommendations to the DAG regarding all requests for new allocations. The

Order 1202
DAG shall approve DOJ’s final request for SES and SP positions and submit that
request to the OPM and the Office of Management and Budget (OMB).
4. Upon receipt of OPM/OMB’s decision, the DAG or the SERB will allocate to the
respective Components the positions authorized by OPM/OMB.
5. Upon the DAG’s approval of the allocation, JMD/HR shall report new position
establishments to OPM.
6. The DAG may request from OPM an adjustment of DOJ’s allocations outside the
biennial cycle.
7. When a component establishes a new executive position, JMD/HR must classify the
position prior to any personnel action (reassignment, transfer, initial career
appointment).
8. Components that receive additional SES or SP positions through the biennial

allocation must assign position titles as approved by the SERB.
C. Position Designation. SES positions are designated as either general or career reserved.
A career reserved position may be filled only by a career appointee. A general position
may be filled by a career, noncareer, limited term, or limited emergency appointment.
Upon establishment of positions, Components shall submit recommendations to JMD/HR
on whether the positions should be designated as general or career reserved. JMD/HR
approval is required for position designations. JMD/HR shall submit any requests to
change position designations to OPM for OPM’s approval.
D. Position Titles. Components will utilize position titles that clearly communicate the
nature and duties of the position. JMD/HR may review SES and SP position titles for
consistency and compliance with Department protocols and regulations.
II. Roles and Responsibilities
A. Deputy Attorney General. The DAG, by delegation at 28 C.F.R. § 0.15(b)(1)(i), is

responsible for managing the Department’s executive resources. The DAG chairs the
SERB. The DAG makes final decisions regarding matters over which the DAG retains
authority, as listed in the Appendix.
B. Component Heads. The heads of Department Components exercise the delegated
authorities identified in the Appendix.
C. Senior Executive Resources Board.

Order 1202
1. Membership. The SERB shall have the following members:
a. The DAG, who shall serve as the Chairperson (voting member);
b. The AAG/A, who shall serve as the Vice Chairperson (voting member);
c. The Associate Attorney General (voting member);
d. The Chief of Staff to the AG, or designee (voting member);
e. The DOJ CHCO, who shall serve as the Executive Secretary (non-voting
member);
f. The Director, JMD/HR, who may serve as a non-voting Technical Advisor on an

“as needed” basis; and
g. Up to three non-voting members designated by the DAG on an “as needed” basis.
2. Functions. The SERB reviews and, with the approval of the DAG, makes
determinations regarding: the allocation of SES and SP positions to Components;
agency awards and performance-based pay adjustments for SES and SP appointees;
and any other action for which the DAG requires or requests the recommendation of
the SERB.
D. Executive Resources Boards (ERB).
1. Establishment. Components shall establish one or more ERBs.
2. Membership. The members of an ERB shall be appointed by the Component Head

or the Component Head’s designee. ERBs shall consist of SES or SP appointees
employed by the Department. A Component should consider diversity and
qualifications when staffing an ERB. More than one half of the members of each
Board shall be career SES appointees. Components shall not appoint officials to
serve on an ERB who are in the supervisory chain of the position being filled. Each
ERB shall be led by a Chairperson. ERB Chairpersons shall appoint a non-voting
technical advisor. The technical advisor should be a human resources expert who is
available to the ERB as an advisor on executive resources.
3. Functions. ERBs shall review the qualifications of candidates for executive

positions, make written recommendations to the appropriate selecting official
concerning eligible executive candidates, and identify the best-qualified candidates.

Order 1202
E. Performance Review Boards (PRB).
1. Establishment. Each Component Head shall establish a PRB to review the

performance of SES and SP appointees. Two or more Component Heads may jointly
establish one PRB. A Component may establish a separate PRB to review SP
performance, or it may use the same PRB to review both SES and SP performance.
2. Membership.
a. Each PRB shall have at least three members, one of which shall serve as
Chairperson. When appraising a career SES appointee’s performance or
recommending a career SES appointee for an agency award, a majority of the
PRB must be career SES appointees. When appraising an SP appointee’s
performance or recommending an SP for an agency award, a majority of the PRB
must be either career SES or SP appointees. Component Heads shall appoint PRB
members in such a manner as to assure consistency, stability, and objectivity in
reviewing performance appraisals. In lieu of appointing their own PRB members,
Component Heads may request that JMD/HR appoint the members of the PRB.
b. JMD/HR shall maintain a list of all employees eligible to serve on PRBs. This list
shall consist of all career and noncareer SES appointees and SP appointees in the
Department, except those in the FBI and DEA. The AAG/A shall submit the list
to the Office of Legal Counsel, which shall ensure that it is published in the
Federal Register. Other than for the FBI and DEA, no one may serve on a PRB
unless his or her name is included on the most recent list of PRB eligible
employees published in the Federal Register.
c. To be appointed to a PRB, an SES or SP appointee:
(1) Must have a current performance rating of “Achieved Results” or above;
(2) Should have consistently applied the Department’s appraisal systems

effectively in his or her respective organization; and
(3) Should possess a thorough knowledge and understanding of the performance

appraisal system and other pertinent aspects of SES or SP performance
management.
PRB members must recuse themselves from matters that pose an actual or
apparent conflict of interest. Accordingly, a member of a PRB may not
participate in the consideration of the performance appraisal of:
10

Order 1202
(1) Any SES/SP employee whom the PRB member initially reviewed during the
same rating cycle;
(2) Anyone in the supervisory chain of the PRB member; or
(3) The PRB member’s own performance appraisal.
If a PRB member is recused from a particular action or review, the remaining

PRB members shall conduct the action or review.
3. Functions.
a. For each SES or SP appraisal assigned to a PRB, the PRB shall review and
evaluate: (1) the initial appraisal and initial summary rating; (2) any
accompanying recommendations for awards, performance-based pay adjustments,
or corrective actions; (3) the employee’s written response (if any); and (4) the
written comments of the higher- level reviewing official (if any). To aid in its
review, a PRB may seek or review additional information, including by
conducting interviews. A PRB shall request assistance from their servicing
Human Resources staff in conducting such interviews.
b. The PRB shall submit its recommendations in writing under the signature of the
PRB Chairperson, along with the proposed rating and accompanying
documentation, to the appropriate appointing authority. Where the PRB does not
concur with the initial appraisal, or where the employee or higher level reviewing
official disagrees with the initial appraisal, the PRB shall provide a written
justification to accompany its recommendations. The appointing authority shall
issue the final appraisal and annual summary rating only after considering the
PRB’s recommendations.
11

Order 1202
APPENDIX
U.S. Department of Justice Executive Resources Delegations of Authority
Position Management Delegations
Authority Delegated to Component Heads Authority Retained by the AG/DAG
 Establishment/abolishment of SES and  Request allocation from Office of

SP positions within Component’s Personnel Management (OPM) for
allocation. Senior Executive Service (SES) and
 Abolishment of encumbered SES and Senior Professional (SP) positions.
SP positions [i.e., reduction-in-force  Approval of Components’ SES and SP
(RIF)], after notification to the AAG/A. allocations, including temporary
(“float”) allocations, within
Department’s overall allocation.
Staffing Delegations
 Establishment of qualifications  AG approval required for

standards. appointments, reassignments,
 Establishment of ERBs. reinstatements, transfers, and details to
 Approval of SES and SP career key positions listed below, including
appointments (except to key positions designations of acting officials.
listed below).  Limited term and limited emergency
 Approval of SES and SP SES appointments, except FBI/DEA.
reassignments, reinstatements,  AG approval required for noncareer
transfers, and intradepartmental details, appointments.
including designations of acting
officials (except to key positions listed
below).
12

Order 1202
Compensation Delegations
 Initial pay setting of career SES and SP  Initial pay setting of career SES and SP
not to exceed 10% over current salary in excess of 10% of current salary.
(except for key positions listed below).  Pay setting of career SES in excess of
 Pay setting of career SES not to exceed 10% over current salary upon
10% over current salary upon reassignments or transfers to positions
reassignments or transfers to positions with greater complexity, scope, and
with greater complexity, scope, and responsibility.
responsibility (except for key positions  Approval of retention allowances.
listed below).  Initial pay setting and pay adjustments
 Recruitment and relocation bonuses for key positions listed below.
(except to key positions listed below).  Initial pay setting and pay adjustments
Only career SES and SL are eligible for for limited term and limited emergency
these bonuses. appointments.
 AG approval required for initial pay
setting and non-performance based pay
adjustments for noncareer executives.
Performance Management Delegations
 Issuance of annual summary rating on  Approval of agency awards for SES

SES and SP performance appraisals. and SP appointees.
 Appointment of Performance Review  The AG or the AG’s designee makes
Boards. recommendations to OPM for
 Performance-based reassignments Presidential Rank Awards.
(except to key positions listed below).  SES and SP performance-based pay
adjustments.
 Waiver to 12-month restriction on SES
pay adjustments.
13

Order 1202
Adverse Action Delegations
 Reprimand, suspension, or removal  Reprimand, suspension or removal of

(except those retained by the appointees from key positions listed
AG/DAG). below. The AG has sole authority to
approve removal from key position or
suspension without pay from key
position for more than 30 days.
 The AG has sole authority to approve
reprimand, suspension, or removal of
noncareer executives.
 Suspension or removal of career SES
attorneys.
 Reprimand, suspension, or removal of
limited emergency and limited term
appointees covered by 5 C.F.R. Part
752, Subpart F.
Other Delegations
 None.  Any other authority granted to the

DAG by law or by delegation from the
AG, and which the DAG cannot
delegate or has not delegated.
Key SES positions (except DEA and FBI):
 Assistant Attorney General for Administration
 All career Deputy Assistant Attorneys General
 All career SES officials who report directly to the DAG or the Associate Attorney
General
 All career SES officials who are deputy Component Heads in Components with a single
deputy position
 All career SES officials who are principal or ranking deputy Component Heads,
including those designated as such by order or memorandum, in Components with two or
more deputy positions
 All career SES officials who are deputy Component Heads in Components with two or
more deputies but no principal or ranking deputy
 The Chairman and Vice Chairman (if career) of the Board of Immigration Appeals
 The Chief Immigration Judge and Deputy Chief Immigration Judge
14

Order 1202
 The following additional career SES officials in the Office of Justice Programs:
 All career Deputy Directors in the National Institute of Justice and the Bureau of
Justice Statistics; and
 The Directors of the following offices:
o Office of Audit, Assessment, and Management; and
o Community Capacity Development Office.
Key DEA SES positions:
 Deputy Administrator
 Chief of Operations
 Chief of Intelligence
 Assistant Administrator for Human Resources
 Assistant Administrator for Operational Support
 Chief Inspector
 Chief Counsel
 Chief Financial Officer
Key FBI SES positions:
 Deputy Director
 Associate Deputy Director
 All Executive Assistant Directors
 General Counsel
 SES officials who report directly to the Director of the FBI
Key SL positions:
 Vice Chairman and Members of the Board of Immigration Appeals
** Note: Nothing in this Order authorizes the appointment, reassignment, transfer, or

reinstatement of a person to an inferior officer position, or the removal or suspension without pay
for over 30 days of a person from an inferior officer position, without the express approval of the
Attorney General.
** Note: Additional SES, SL, or ST positions in the Department may be identified as key
positions for purposes of this Order.
** Note: The approval of the President is required for an appointment, reassignment,

reinstatement, transfer, or detail to the Assistant Attorney General for Administration position,
and for a removal of the Assistant Attorney General for Administration.
15
EXHIBIT 5
EXHIBIT 6

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Case 1:19-cv-02399-RDM Document 23 Filed 11/01/19 Page 1 of 48

IN THE UNITED STATES DISTRICT COURT

MOTION TO DISMISS AND FOR SUMMARY JUDGMENT

in the accompanying memorandum.

Dated: November 1, 2019 Respectfully submitted,

/s/ Justin M. Sandberg

Phone: (202) 514-5838

IN THE UNITED STATES DISTRICT COURT

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS AND FOR SUMMARY

I. The CSRA Precludes McCabe’s Statutory and Regulatory Claims ................................. 10

II. Plaintiff’s Constitutional Due Process Claims Lack Merit ............................................... 14

B. Plaintiff Has Waived His Bias Allegations .............................................................. 17

C. Plaintiff Has Not Stated a Plausible Claim of Bias.................................................. 19

Abhe & Svoboda, Inc. v. Chao,

Am. Mfrs. Mut. Ins. Co. v. Sullivan,

Am. Postal Workers Union, AFL-CIO v. U.S. Postal Service,

Ass’n of Nat. Advertisers, Inc. v. FTC,

Cayuga Nation v. Bernhardt,

Clark v. Library of Congress,

Cleveland Bd. of Educ. v. Loudermill,

Crosby-Bey v. Dist. of Columbia,

Dave v. D.C. Metro. Police Dep’t,

Doe v. U.S. Dep’t of Justice,

Douglas v. Veterans Admin.,

Filebark v. U.S. Dep’t of Transp.,

Free Enter. Fund v. Pub. Co. Accounting Oversight Bd.,

Gardner v. United States,

Grosdidier v. Chairman, Broad. Bd. of Governors,

Louisiana Ass’n of Indep. Producers & Royalty Owners v. F.E.R.C.,

Mack v. United States,

Marcus v. Dir., Office of Workers’ Comp. Programs, U. S. Dep’t of Labor,

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

Pharaon v. Bd. of Governors of Fed. Reserve Sys.,

Slovinec v. Georgetown Univ.,

Strumsky v. Washington Post Co.,

Thompson v. Dist. of Columbia,

Throckmorton v. Nat’l Transp. Safety Bd.,

United States v. Fausto,

Vill. of Bensenville v. Fed. Aviation Admin.,

5 U.S.C. APP. 3 § 2 ........................................................................................................................ 5

5 U.S.C. § 2301 ............................................................................................................................. 11

5 U.S.C. § 2302 ............................................................................................................................. 13

5 U.S.C. § 4301 ............................................................................................................................. 11

5 U.S.C. § 7501 ............................................................................................................................. 11

5 U.S.C. § 7511 ................................................................................................................. 11, 12, 16

5 U.S.C. § 7513 ............................................................................................................................. 11

5 U.S.C. § 7703 ............................................................................................................................. 11

5 U.S.C. § 8412(d)(2) ................................................................................................................... 16

5 U.S.C. § 8905(b) ........................................................................................................................ 17

FBI, About FBI, Leadership & Structure, Director Christopher Wray,

U.S. Department of Justice, Office of Inspector General, “A Report of Investigation of Certain

candor under oath, the standard penalty is removal. Id. at 14.

Following standard practice—and the applicable regulation, 8 C.F.R. § 0.29e(d)—the Inspector

Department of Justice, Office of Inspector General, “A Report of Investigation of Certain

https://oig.justice.gov/reports/2018/o20180413.pdf. Assistant Director Will, a career official,

Douglas factors,1 removal is what Assistant Director Will recommended.

the FBI and the Civil Service.

claims brought by Plaintiff.

perceived political affiliation.

It conducted an investigation, which included conducting multiple interviews of Plaintiff. Id. at 2.

https://www.fbi.gov/about/leadership-and-structure (listing a single Deputy Director position for

weinsheimer-replace-departing-associate. ADAG Schools sent Plaintiff a letter informing him of

of imprisonment can be imposed.”